rules of origin · table of contents 1. rules of origin: methodological aspects and other key...
TRANSCRIPT
A basic guide to
Rules of Origin
with emphasis on the EU system and
update on the SADC-EAC-COMESA Tripartite FTA RoO
Prepared for the Swedish National Board of Trade Training Programme on Trade Facilitation 2011-2012
Regional phase - Cape Town - March 2012
By Trade Law Centre for Southern Africa (tralac)
This document is based on a previous version and contains updates on RoO
developments relating to the EU GSP and EPAs as well as the
SADC-EAC-COMESA FTA RoO
Copyright © tralac, 2012.
Readers are encouraged to quote and reproduce the material contained in these publications for educational, non-profit purposes, provided the source is acknowledged.
Table of Contents
1. Rules of Origin: Methodological aspects and other key features .......... 1
1.1 Rules of Origin and their role in international trade ........................................... 1
The purpose of Rules of Origin ...................................................................................... 1
Preferential and non-preferential Rules of Origin ........................................................... 3
1.2 Methodologies used in determining origin ......................................................... 4
Wholly obtained or substantially transformed: The value added, change in tariff heading
and specific processing tests to determine local origin ................................................... 4
Advantages and disadvantages of each RoO methodology ........................................... 9
1.3 Other components of RoO .............................................................................. 14
Cumulation ...................................................................................................................14
Value tolerance or 'de minimis' .....................................................................................17
Insufficient operations ...................................................................................................18
Developmental dimensions ...........................................................................................18
Derogations ..................................................................................................................20
The absorption principle or "roll-up" ..............................................................................21
2. Select sector-specific issues facing African countries in EU
preferential trade ........................................................................................... 23
2.1 Restrictive Rules of Origin in EU trading arrangements .................................. 23
2.2 Specific sectoral challenges under current EU trade agreements ................... 25
2.3 Recent changes to EU-ACP RoO in EPAs and in the EU GSP ...................... 35
Textiles and clothing .....................................................................................................35
Fishing sector products .................................................................................................38
Issues and challenges ..................................................................................................40
Other sectors ................................................................................................................43
2.4 Arguments around the issue of less restrictive Rules of Origin ....................... 44
3. A timeline of developments and overview of core features of EU RoO
reform ............................................................................................................. 49
3.1 Principles of EU preferential RoO requirements ............................................. 49
3.2 A revised RoO framework for the EU .............................................................. 50
Green Paper on the future of the EU RoO regime.........................................................52
EC Communication on RoO: Proposals for change ......................................................54
Consideration by the EC of the "percentage test" methodology: some perspectives .....61
Subsequent developments: early EC proposals to the EPA regions .............................65
Critique of the EC proposals and recent developments ................................................67
Provisional outcomes of the RoO negotiations between ACP countries and the EU .....70
3.3 Revisions to the EU GSP in January 2011 and other planned changes ......... 72
Background context ......................................................................................................72
Sector-specific changes ................................................................................................72
Cumulation provisions ..................................................................................................74
Methods of valuation .....................................................................................................74
Value tolerance / de minimis .........................................................................................75
Direct transport / non-manipulation ...............................................................................75
4. RoO in southern and east Africa: the EAC-SADC-COMESA Tripartite
FTA .................................................................................................................. 76
4.1 Overview of current RoO in the region ............................................................ 76
The RoO in SADC ........................................................................................................77
The RoO in COMESA ...................................................................................................78
The RoO in the EAC .....................................................................................................80
4.2 Tripartite RoO: recent developments and state of play on RoO ...................... 80
Annex 1. "Wholly obtained" provisions in SADC-EU Interim EPA ........... 84
Annex 2: "Insufficient processing" in SADC-EU Interim EPA................... 86
1
1. Rules of Origin: Methodological aspects and other key features
1.1 Rules of Origin and their role in international trade
The purpose of Rules of Origin
Rules of Origin (RoO) play an important role in the regulation of international trade,
and are a core component of preferential trade arrangements. RoO set out the
conditions under which traded goods are considered to be originating in a specific
exporting country; in a sense, they describe the conditions under which a specific
nationality—in particular that of the preference receiving country—is conferred on a
product shipped from one country to another. Essentially, RoO confer a form of
economic origin on products, being the country where a specific minimum degree of
transformation and value addition has taken place. In that sense, the determination
on origin goes beyond purely the last location where further processing has taken
place, and is likewise not based simply on the last geographic location from where a
product is shipped. Consequently, as long as tariff and quota regulations discriminate
between different trade partners, RoO will remain relevant.
RoO are important as without them, no trade would be able to take place under a
preferential trading arrangement as any preferences would be exploited by exporters
from non-eligible countries. This—often referred to as trade deflection —entails
goods passing through the territory of a country with more favourable market access
conditions to a preference-giving third country.
As long as tariff-based barriers remain, RoO will continue to act as a tool for
distinguishing between preferential trade and trade that is subject to normal trade
rules, most commonly normal import tariffs or quota limits. Compliance with the
relevant origin requirements will continue to reward traders with a margin of
preference that, in most cases, will enhance the competitiveness of goods traded
under a preference regime.
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Preventing trade deflection, and with it the dissipation of trade benefits away from the
intended beneficiaries under a preferential trade arrangement, is the original and only
legitimate role of RoO. In reality, RoO have gone beyond acting only as instruments
to prevent trade deflection. RoO, in many instances, have become discretionary trade
policy instruments that have bowed to commercial and country-specific vested
interests, setting conditions that do little to foster growing trade but more to protect
specific industrial interests. In fact, where RoO are overly restrictive, they raise the
cost of production as firms are forced to source from second-best locations. The
likelihood of this is greater in non-reciprocal preferential trade agreements, where the
RoO are not the result of bilateral engagement and negotiation but rather the
prerogative of the preference-giving country. In the absence of persuasive guidelines,
for example under the banner of the WTO, RoO will continue to be subject to the
pressures of domestic protectionism.
RoO can, from an economic perspective, lead to sub-optimal supply and production
configurations within countries or regions forming part of a preferential trade area
(PTA). As RoO set the conditions under which a given product may benefit from
preferential market access, usually by prescribing minimum local processing, firms
may be tempted to utilise inputs sourced from within a PTA in order to benefit from
enhanced market access, rather than from more competitive sources elsewhere. The
decision to source locally depends on the benefit (or margin of preference) available
to the exporter, who must contrast possibly higher cost inputs against enhanced
competitiveness as a result of a remission or reduction of duties in the destination
(import) country. In other words, RoO create a set of incentives for traders within a
given PTA, whose size and relevance ultimately depend on the margin of preference
and cost differentials between sourcing inputs locally or from abroad.
RoO can also play a meaningful role in supporting local development, specifically by
providing incentives to source materials locally, and by developing local or regional
product value chains. This occurs when demand for upstream input materials is
stimulated by appropriate RoO, in the context of significant preference margins. For
example, a fabric mill may be induced to step up production if local garment
producers are required to use local fabric in order to benefit from preferential access
to the market of a trade partner. The reality, however, is that RoO in isolation, in most
cases, do not lead to greater development. Domestic economic policies, the general
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trading environment and other commercial realities play a key role in determining
sourcing decisions, and RoO that seek to create trade without recognising these
realities will simply undermine and suppress trade between preferential trade
partners.
Preferential and non-preferential Rules of Origin
While the emphasis here is on preferential RoO, the distinction between the two
types of RoO is important to note. Non-preferential RoO are rules and regulations
that are imposed by a country in relation to a specific domestic policy or legal
requirement, and generally apply to all goods entering its jurisdiction. Non-
preferential RoO are used in a number of fora, including labelling requirements
(relating to country of origin), the management and imposition of anti-dumping duties
and other safeguard measures, government procurement and so forth.1 In essence,
non-preferential RoO seek to distinguish between domestic and foreign products.
Non-preferential RoO are also the subject of joint harmonisation efforts by the WTO
Technical Committee on Rules of Origin and World Customs Organisation, although
much work remains to be done in defining a set of conditions that would become
binding on all WTO member states. While the WTO Agreement on Rules of Origin
thus far provides certain guiding principles and a broad work programme for
harmonising non-preferential RoO, this appears to have had only limited impact in
preventing even non-preferential RoO from being used as discriminatory trade policy
instruments. Only once completed would a new RoO framework become binding on
member states.
Preferential RoO, as outlined earlier, essentially provide the basis for determining the
eligibility of a traded good for preferential treatment, for example a waiver from import
duties or quota restrictions. Preferential RoO are contained both in reciprocal
(whereby mutual preferences are granted) and non-reciprocal trading arrangements
(for example unilateral market preferences provided by a developed country to a
group of lesser developed countries). Considering the recent proliferation of
preferential trade agreements at the bilateral level, preferential RoO have gained in
1 World Customs Organisation: See http://www.wcoomd.org/ie/en/AboutUs/fiche6_ang.pdf.
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importance and play a critical role in determining market access conditions between
trade partners.
1.2 Methodologies used in determining origin
Wholly obtained or substantially transformed: The value added, change in tariff heading and specific processing tests to determine local origin
RoO regimes found in PTAs employ a range of methodologies to define origin. In the
absence of a binding international agreement on preferential RoO, let alone non-
preferential trade rules, trading partners continue to make use of a range of different
methodological benchmarks to determine origin. The primary distinction is between
goods that are wholly produced in the preferential trade partner and exporting
country, and those that are made up of inputs sourced from different parts of the
world. While the origin of a wholly produced product is largely beyond dispute in
terms of applying the RoO, goods made up from both local and foreign content are
subject to closer scrutiny.
Product
Wholly produced in
exporting country
Substantially transformed
in exporting country
VA
Value added or local content
SP
Specific processing or
technical requirement
CTH
Change in tariff heading
Originating in exporting
country
5
Four key methodologies are used to determine whether a product should be
considered as originating in the exporting country. Most RoO regimes deem a
product that is made up solely of materials sourced from within a country, or which is
a growth of the exporting country, to be originating. This requirement is known as the
‘wholly obtained’ test in EU agreements, and is a common feature across a wide
range of origin regimes (see example of this provision in Annex 1 - sourced from the
EU-SADC Interim EPA). Products typically qualifying as originating under the wholly
obtained principle include mineral products extracted from soil or seabed, vegetable
products and live animals born and raised in the exporting country as well as fish
caught in a country’s inland and territorial waters by their vessels (as is shown in
Annex I, the EU rules provide an elaborate and somewhat controversial definition on
what is considered as “their” factory ships, where fish is caught outside the territorial
waters of an exporting country). Products that are made exclusively from the above
would, by extension, also be considered to be wholly obtained and therefore deemed
originating. Annex I provides the “wholly obtained” conditions used in the EU-SADC
Interim Economic Partnership Agreement (and with some differences in other EU
agreements).
The alternative to wholly obtained is for a product to undergo substantial
transformation in the exporting country. Substantial transformation in accordance with
specific requirements in effect confers originating status on a product and qualifies it
for preferential market access, thus differentiating it from products that may simply be
transhipped through the exporting country’s customs territory. Substantial
transformation requirements therefore ensure that the working and processing
undertaken in the exporting country go beyond a minimum set level and that market
preferences indeed accrue to the trading partner or beneficiary within a PTA rather
than to third countries.
Three tests can be applied to prescribe and measure substantial transformation.
None of these methodologies has been developed specifically with RoO in mind, and
each has certain shortcomings which will be discussed later. Largely as a result of
these shortcomings, but also with a view to increasing the flexibility to producers and
exporters, some RoO regimes employ more than one test to measure substantial
transformation. Others provide exporters with a choice between more than one test,
based on different methodologies, while others utilise a single methodology yet
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change the criteria with which such methodology is used, for example between
countries having different levels of economic development, or between different
product groups and industry sectors. Each of these methodologies —change in tariff
heading, specific processing and value added—is described below.
◘ Change in tariff heading (CTH)
Substantial transformation is considered to have occurred when the materials have
been transformed to such an extent that the finished good (to be exported) can be
classified under a different tariff heading to its input components, based on the
harmonised commodity trading system nomenclature (HS). The HS is used
universally2, mainly to classify trade flows and for purpose of managing tariff
treatment of imports, and is consistent between countries up to the 6-digit level. All
goods are categorised according to sections, chapters (2-digit), headings (4-digit)
and sub-headings (6-digit), representing increasing levels of disaggregation and
commodity description. Although the CTH methodology using a narrow definition
refers to a change in tariff heading, representing a product transformation at the 4-
digit level, it is here referred to more broadly as representing a change at any
predetermined HS classification (it could, then, also be referred to the ‘change in tariff
classification’ rule). In other words, this methodology could be applied at various
levels of disaggregation and is not limited to a change at the 4-digit level.
2 As of November 2006, 126 countries were contracting parties to the Harmonised System
Convention (Source: World Customs Organisation).
Example CTH Source: EU - SADC Interim EPA
HS 2007 Jams, marmalades, fruit jellies, etc.
RoO: “Manufacture in which all the materials used are classified within a heading other
than that of the product” and
“The value of any materials of Chapter 17 used does not exceed 30% of the ex-works
price of the product”
Fruit (e.g. oranges HS0805) is generally classified within chapter 08 and sugar (e.g. cane sugar HS1701)
within chapter 17. Marmalade is therefore originating if the making up takes place within the exporting
country; the second requirement (a VA restriction) stipulates that non-originating sugar may be used up to
30% by value of the ex-works price of the product
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◘ Specific processing (SP)
This alternative methodology is also known as the ‘technical test’, as it provides
specific working and processing requirements that must be undertaken within the
exporting country in order to be deemed as originating there. This methodology
requires individual application of the ‘processing required’ and does not lend itself to
being uniformly applied across product sectors.
◘ Value added (VA)
The value added methodology (this term is used fairly generically although a more
accurate description would be 'percentage method') involves setting a specific
threshold, expressed as a percentage, in relation to the proportion of local and/or
foreign content of a product. In its most basic form, VA sets a minimum local content
requirement that applies to a product seeking preferential market access under a
PTA. Alternatively, a maximum foreign content can be specified, which limits the use
of non-originating materials beyond a certain threshold. The VA methodology further
requires rules relating to the basis on which value added is calculated, for example
factory sales price or net production cost. The latter in particular requires that
restrictions are set on what may or may not be included in the calculation relating to
content and value added.
Example SP Source: EU - SADC Interim EPA
HS 4102 Raw skins of sheep or lambs, without wool on
RoO: “Removal of wool from sheep or lamb skins, with wool on”
The process of removing the animal’s wool is considered sufficient to be regarded as substantial
transformation of the underlying product.
8
Current EU RoO, where use is made of a VA basis for determining origin, generally
set a value of non-originating content threshold that may not be exceeded. In many
RoO regimes this methodology is used as an alternative requirement, or as a sub-
rule. For example, the rule may require a CTH and as an alternative requirement limit
the value of non-originating materials to a given threshold, based on the ex-works
price of the product or the total value of materials. The rule may also limit the use of
non-originating materials, in instances where the application of a given primary rule
may lead to outcomes that would see very little local value added. The VA test
therefore also has merit in reducing the likelihood of the primary rule being met
without any significant value being added.
The underlying cost basis applied to the calculation of product and material prices,
and hence local against non-originating content, has a significant effect on the
restrictiveness of a given VA threshold. This is an important factor that must be
considered by trade negotiators when agreeing to changes in RoO that stipulate
certain measures of local or foreign content. Where the ex-works basis is used, the
final “factory-door” selling price, less any transportation charges in shipping the
product from the producer / exporter to the importer, is considered to be the
denominator on which to base local or foreign content. By extension this means that
local factor mark-up is considered to be part of local content, rasing the overall value
of local processing and reducing, in relative terms, the value of non-originating
materials used.
Example VA / Percentage test Source: AGOA Legislation
HS 7223.00.10 Stainless steel, round wire
RoO: Direct cost of value of materials plus direct cost of processing in the beneficiary
country must equal at least 35% of the product’s appraised value at the US port of
entry. In addition, up to 15% of the 35% may consist of US-made parts and materials.
The combined value of materials and processing in the home (“beneficiary”) country must exceed 35%,
while almost half of this may be made up of materials sourced from the United States. The “value” of the
transaction includes packaging costs, selling commission, royalty and licensing fees incurred by a buyer,
and the value of free assistance that may have been provided to the buyer conditional upon the sale.
Included under the "direct costs of processing" are the cost of labour, engineering or supervisory quality
control, machinery costs (and depreciation of machinery and equipment), as well as Research and
Development costs (R&D). These further guidelines are specific to AGOA and may vary between different
PTAs.
9
Where the basis for calculation is the net production cost, which considers only the
direct costs associated with the production of a given vehicle (and which requires any
“non-related” administrative costs, as well as certain intangible inputs to be discarded
in the calculation), the denominator is effectively reduced. All other things being
equal, this means that local content is also reduced even if only by not being able to
include local mark-up in the calculation for the final price of the product. A lower
denominator means that imported materials, all other things being equal, account for
a relatively higher non-originating content threshold. While it is possible to set
equivalent thresholds using either the ex-works or production cost basis, the latter will
require a higher non-originating (or lower local) content threshold in order to be
considered equally restrictive to a RoO using the ex-works basis. Administratively,
the ex-works basis is significantly simpler to use.
Advantages and disadvantages of each RoO methodology
None of the methodologies discussed above are optimally suited to the application of
setting RoO. Each test has both advantages and disadvantages, some of which will
be discussed here. In the absence of internationally binding guidelines, the use of
different methodologies for determining origin alongside different origin ‘thresholds’
means that ultimately it is exporters and international trade that may be compromised
by the various RoO methodologies. This is particularly so, given not only the
exponential growth in international trade in recent years, but also a mushrooming of
PTAs often with overlapping memberships. Furthermore, trade and production have
evolved to such an extent that there is an increasing ‘polarisation’ of production
across the world, with comparative advantage and resource endowments meaning
that few finished goods today are wholly produced in one country only but are
utilising competitive inputs sourced from a range of locations. This has implications
for preferential RoO, as these sometimes tend to be inconsistent with commercial
realities and global value chain dynamics.
While there is no clear ‘best’ methodology, it must be emphasised that the purpose of
preferential origin rules is the prevention of trade deflection. Bearing this important
objective in mind, RoO should be simple to administer—both for traders and customs
authorities—and should not be trade distorting. At the same time, it is the prerogative
10
of preferential trade partners to devise rules that ensure that significant processing
takes place in the preference-receiving country, while not at the same time serving as
a guise for protectionist trade policy.
The change in tariff heading (CTH) methodology, which is based on the HS
nomenclature, lends itself to the application of preferential RoO in a large majority of
instances, but is undermined by the fact that the HS system was not developed with
RoO in mind. Rather, its purpose was the administration of tariffs and related trade
policy, recording of trade flows, and so forth. This classification system categorises
products generically according to their material properties and therefore mostly
combines unprocessed raw materials in the same HS Section or HS Chapter as
further processed and beneficiated final goods. For example, unprocessed sugar
cane through to sugar confectionery are located in Chapter 17, cotton and cotton
fabric in Chapter 52, and natural rubber and, for example, conveyer belts of rubber, in
Chapter 40.
Overall, the CTH is relatively simple to administer, both by producers and exporters
as well as by customs authorities. This simplicity is one of the factors that make CTH
attractive, while the level of local transformation embodied by this methodology
generally does not represent a significant trade barrier to producers, especially in
lesser developed economies.
Problems arise when further processed goods are classified in the same heading as
their material inputs, this being the case in certain instances at the 4-digit heading
level (being the most common disaggregation used in the CTH methodology). This
means that were a CTH methodology to be applied as a test for conferring local
origin, some products would not qualify. Examples include fresh and dried vegetables
(HS 7102), raw and further processed diamonds (HS7102), or parts of agricultural
machinery used for soil preparation or cultivation, as well as the machinery itself,
which both fall into 8432.
Further drawbacks of the HS system include the fact that it is still subject to revision,
and ad hoc changes take place especially as ‘new’ products require classification.
Also, a tariff jump (at whatever level of disaggregation) does not represent a
consistent level of transformation, processing or value addition. For example, fresh or
11
chilled fish livers and roes (HS 0302) are categorised in a different heading once
frozen (HS 0303). Here, simple freezing would deem the frozen product originating
under a 4-digit CTH test. Similarly, the transformation of cotton yarn (HS 5205) into
woven cotton fabric (5208) represents a CTH, although the latter arguably involves a
far greater degree of (local) transformation than the former.
The specific processing (SP) test is often seen in the least favourable light as a
general RoO methodology, although it can be extremely useful in supplementing the
other methodologies given some of their shortcomings. In an ideal world, SP could be
used to determine appropriate levels of local transformation that strike a balance
between preventing trade deflection and not acting as inappropriate barriers to trade;
SP can be nuanced to cater for the various product and industry specific scenarios
that are not adequately dealt with by the CTH or—as discussed later—the VA
methodology.
But a major drawback of SP is the fact that it is not universally replicable across a
RoO regime and requires line by line negotiation between trade partners. This allows
protectionist and other political economy considerations to influence the outcome of
SP negotiations and rules, as is evident today in a number of preferential trade
arrangements. Likewise, in order to achieve a satisfactory outcome, the SP
methodology requires intense consultations with industry in order to develop
appropriate SP criteria—something that is unrealistic given the large number of
products and processes that would need to be covered. Despite its merits in certain
instances, SP also fails to deal with the important objectives of simplification and
transparency, both for traders and for customs authorities who are tasked with
ensuring compliance both on the export and import side. Administratively, this would
likely result in slowing down the trade process and work against the objective of
greater trade integration between the parties to a PTA.
The value-added (VA) methodology entails setting a local or foreign content
threshold in the determination of origin. Conceptually, this methodology is simple,
and it can be applied almost universally across the product spectrum. VA lends itself
to the setting of different thresholds depending on the particular product or industry
sector, and is also suitable in differentiating between lesser and more developed
countries through the application of lower or higher local content requirements
12
respectively. In other words, VA lends itself to at least a basic form or asymmetry
between countries that may be very different in terms of their economic and industrial
profile. VA is used in a number of PTAs, either as the primary RoO methodology or
as an alternative option.
A number of challenges complicate the use of VA. Probably the most important is the
administrative burden that VA imposes on producers, exporters and customs
authorities. Exporters must be able to demonstrate compliance with any given VA
threshold, which requires detailed accounting records to be maintained and in many
instances the use of cost accountants to prove compliance. Customs authorities must
also have in place systems that can verify the accuracy of any claims made in
relation to local content, both on the exporting and the importing side, which is
standard practice but substantially more technical and onerous with VA. Exporting
countries’ customs authorities are usually required to have in place adequate
systems to register exporters and ensure compliance with the relevant RoO
calculations, as noncompliance and incorrect claims would seriously undermine the
trade process and jeopardise the functioning of a PTA. Likewise, customs authorities
on the importing side must be able to verify any claims, which require cooperation
with the exporting country and potentially holds up the process more than the use of
other methodologies does.
The burden of cost accounting required also depends on the cost basis used for
determining local against foreign content. For example, the ex-works basis would
deem the price at which a given product leaves a factory in which the last processing
took place to be the cost denominator on which to base local content. The net
production cost basis would typically only look at certain direct material and labour
costs and at other direct expenses such as royalties in the permutation of content
value. Many cost elements would then be specifically excluded—for example product
packaging, certain marketing costs, etc. This complicates the burden of proof.
While the ex-works basis is generally simpler to administer, it also has certain
drawbacks compared to a production cost basis. For example, in certain sectors
exporters are not able to simply set the price, but must in effect “fit in” with a given
world price for a product or are subject to the buying power and value chain
dominance of the buyer in specific output markets. This means that exporters might
13
have to reduce the selling price in order to accommodate different shipping charges
and still remain competitive in a price-sensitive market. Likewise, large buyers may
require volume or seasonal discounts, all of which reduce the local value-added by
effectively reducing the mark up charged. These influences may affect the originating
status of a product, a situation that would not arise under an equivalent (lower)
threshold using only production cost as the denominator.
Various other issues are relevant to the VA methodology. Amongst these is the fact
that value calculations are influenced by movements of currency exchange rates, or
even the (in)efficiency of a country’s banking system. A depreciation of the local
currency would raise the value of foreign content, and may even cases change a
product’s status from originating to non-originating, while high financial charges (incl.
currency exchange rates, etc.) would likewise artificially inflate foreign content of a
product. It is also often argued that VA may act as a disincentive for local productivity
improvements, as any efficiency gains that translate into lower local costs also affect
the cost ratio of local against foreign content. The counter-argument to this might be
that, in reality, producers in developing countries are more likely to benefit from
greater efficiency improvements contained in imported content (and expressed
through lower import costs) than brought about internally. Likewise, according to
global practice, most VA thresholds require less than 50% local content, meaning
that the benefits of importing low-inflationary, if not deflationary, pressures are
probably widespread.
Not unlike the CTH and SP methodologies, a single across-the-board threshold will
not necessarily imply similar local processing requirements, and will also not impose
the same burden on producers. The impact on producers depends on the availability
and competitiveness of local against foreign materials, labour cost and other
commercial realities, for example where an appliance manufacturer must source from
abroad key components that make up a large portion of the final cost due to limited
sources of supply globally. Setting a local content threshold inappropriately high
would take away the ability of many marginal producers and certain industry
configurations that rely on tapping into global sourcing opportunities.
The lack of a universal RoO methodology that is easily applied and simple to
administer, yet which is able to balance the need to prevent trade deflection with the
14
objective of enhancing trade under a given preferential trade regime, means that
RoO will continue to be an important yet challenging component of trade agreements.
In considering which may be the preferred methodology in a given scenario, for
example the negotiation of regional trade agreements, Economic Partnership
Agreements (EPAs) between the European Union (EU) and African, Caribbean and
Pacific (ACP) countries or any other bilateral PTA outside the multilateral WTO
framework, it is necessary to recognise that certain situations and industries require a
more flexible approach than a simple across-the-board application of a single
methodology. At the very least, the objectives of transparency, simplicity and equity
should remain key to the outcome of RoO negotiations, so that compliance with RoO
themselves do not become a technical barrier to trade.
1.3 Other components of RoO
RoO entail more than the basic tests that deem a product originating or
nonoriginating under a PTA. Various other dimensions to RoO regimes expand or
restrict the requirements under which a product may qualify for preferential treatment,
including provisions relating to the use of materials from specific partner countries to
be deemed as automatically originating, certain waivers from a strict interpretation of
the rules and ‘insufficient operations’ that on their own are specifically excluded from
contributing to a product’s originating status.
Cumulation
Cumulation refers to provisions that permit materials and operations from more than
the exporting country to contribute to ‘substantial transformation’. Cumulation
essentially increases the geographic scale of the exporting country, as it permits the
use of inputs from certain partner countries without such inputs having to undergo
further substantial transformation in the final exporting country. Such inputs are
considered as originating the product where further processing takes place, even
though it may not have been substantially transformed and might have entered that
country under the cumulation provisions. With respect to the ACP group of states, for
example, cumulation provisions consider all ACP countries to be a single territory for
RoO purposes, subject to certain conditions, which allows the substantial
15
transformation of a product or material to be undertaken jointly in more than one
territory.
Cumulation provisions have certain technical limitations, and these must be
considered in the context of the overall objective of RoO. As outlined at the start of
this chapter, the original and arguably only legitimate objective of RoO is to prevent
trade deflection, which would entail goods from a country enjoying less preferential
market access to a third country transhipping its goods through the customs territory
of a country having more favourable access to that third country. While this
theoretical scenario is probably tempered by reality, as this entails additional shipping
costs and possible import tariffs levied by the ‘go-between’ (unless such re-exports
qualify for a waiver or remission of import duties), it nevertheless forms the key
theoretical basis of cumulation. That is, cumulation is made possible by the fact that
both cumulation partners face equal market access conditions—essentially the same
RoO—in the market of the third country. In such a scenario there is little if any benefit
to be obtained from trade deflection and thus no danger of a PTA being undermined
by trade deflection from associated countries. Cumulation therefore has the potential
of playing an important role in facilitating trade between countries belonging to the
same PTA.
Different forms of cumulation provisions can form part of preferential RoO. These are
bilateral, full, diagonal and regional cumulation.
◘ Bilateral cumulation
Bilateral cumulation is the most elementary form of cumulation and involves
cumulation between the principal partners in a given PTA. It entails being able to
freely utilise goods and materials originating in each other’s customs territory for
further processing (such materials are considered local content when used in that
country’s exports to its principal trade partner), without having to undertake specific
transformation in accordance with the applicable RoO. Material content must
however first be originating in the partner country before it may be used for
cumulation purposes, as it would otherwise be considered as trade deflection and
thus undermine the PTA. Bilateral cumulation is common to all preferential RoO
regimes.
16
◘ Full cumulation
Full cumulation permits working and processing to be undertaken by all parties to a
PTA without reference to minimum transformation requirements set out in the RoO.
All processing and materials are jointly rather than individually considered in
determining if and where a product is originating, although the final country in which
working and processing took places is ultimately deemed to be the origin of the final
export product. Full cumulation essentially expands the territory of the exporting
country to apply to all parties to a PTA. An example of full cumulation is the treatment
of ACP countries as a single territory for RoO purposes under the previous EU-ACP
Cotonou Agreement.
◘ Diagonal and regional cumulation
Diagonal cumulation is a form of cumulation that goes beyond the usual boundaries
of bilateral and full cumulation in that it permits, under certain circumstances, the use
of materials from third countries not party to an agreement to be classified as
originating in the exporting country. Such materials are not required to undergo
substantial transformation in line with RoO requirements when further processed by
the final exporting country, but must nevertheless be originating in the third country
by way of an application of RoO that is identical to the RoO between the exporting
country and the country of final destination. This means that an existing preferential
trade relationship, framed by similar RoO, must exist between the third country and
the home country’s principal partner in a given PTA. This form of cumulation is a
feature in the EURO-MED Agreements, where a number of countries each have a
separate yet similar agreement with the EU; diagonal cumulation permits cumulation
of originating goods and materials between the EU trade partners without having to
again undergo substantial transformation in the final exporting country when shipped
to the EU.
Regional cumulation is a derivative of diagonal cumulation but applies only within a
specific regional context—often neighbouring developing countries or those
belonging to an existing regional integration initiative. An example where regional
integration is a feature in RoO is the EU’s Generalised System of Preferences (GSP),
which permits cumulation between three predefined groups of GSP beneficiaries.
17
Value tolerance or 'de minimis'
Value tolerance rules—sometimes also called de minimis (meaning ‘not worthy of
concern’)—are RoO provisions that somewhat alleviate the strict application of RoO
list rules or core methodologies underlying a particular RoO regime. Usually, the de
minimis provision is in the form of a VA-based component and which in effect
represents a waiver from normal rules. A 15% value tolerance threshold means that
up to 15% by value of the product does not need to meet origin requirements. This is
a useful enhancement to RoO as it provides manufacturers with greater input
flexibility, especially where certain inputs are not available locally or cannot be
sourced at a competitive price within the country. EU RoO base the value tolerance
on the ex-works price of the product (if the rule requires the use of certain originating
inputs, value tolerance allows up to 15% of non-originating materials to be used),
although other agreements also have different forms of value tolerance. The African
Growth and Opportunity Act (AGOA) for example has a 25% “findings and trimmings”
rule applicable to garment exports.
Where specific value-added thresholds form part of the RoO of certain product
categories, value tolerance thresholds are limited in their application as they do not
supersede specific value-added or value-related requirements, for example where
non-originating content is subject to a specific maximum threshold. Likewise, certain
sectors can be excluded from the application of value tolerance provisions. In the EU-
South Africa Agreement (Trade and Development Co-operation Agreement or TDCA)
the value tolerance provisions do not apply to certain sectors (textiles and clothing in
HS Chapters 50-63) and are limited to a lower threshold in others (for example fish
and tobacco products).
Value tolerance provisions are only relevant where value-added does not form the
core RoO methodology used in a RoO regime, but are a supplementary mechanism
to alleviate the restrictiveness of RoO where tariff heading and technical processing
tests are used in the consideration of origin of a product.
18
Insufficient operations
Insufficient operations define certain processes that on their own are inadequate to
confer origin on a product, irrespective of whether the product otherwise complies
with the applicable origin requirements. A range of processes and undertakings
could, if necessary, be included in such a list of ‘insufficient operations’, which is a
prominent feature of preferential trade regimes to which the EU is a party. Typically,
processes such as simple preservation of a product—through cold storage—as well
as the process of packaging, affixing of labels or simple assembly of packages is
included in such a list, as it is argued that such processes do not change the
economic nature of the product and by themselves do not add sufficient value to be
worthy of changing the origin of a product shipped under preferential trade relations.
A full list of ‘insufficient working or processing’ operations, using that which is
contained in the EU-SADC Interim EPA, is provided in Annex 2
Developmental dimensions
RoO can have an important impact on development, in that by setting the criteria by
which the origin of a product is determined for purposes of preferential market
access, RoO can both act as an incentive and discouragement to trade and
development. The link between RoO and trade is indisputable, although it is also
beyond question that favourable RoO will not – on their own – lead to trade and
development.
RoO can have a positive impact on development if the criteria that determine origin
are defined in such a way as to provide an incentive to economic agents to increase
production, to invest, and ultimately to export. Since preferential RoO permit duty-free
or duty-reduced exports—in addition to other preferences—between the contracting
parties to a preferential trade arrangement, the incentive of complying with relevant
RoO must be weighed against any additional processing and administrative costs
that might be associated with the RoO. Where the net result is a positive outcome—
meaning that the incentive of complying with RoO is sufficiently large to warrant the
‘cost’ of compliance, then RoO can play an important role in development in the
19
exporting country. Favourable market access represents a source of competitive
advantage, which may drive development through greater investment and
production.
While RoO can act as a driver to development, commercial realities play at least as
important a role in whether RoO lead to greater trade and induce development. It is
sometimes argued that restrictive origin requirements—for example those that force
producers to source materials locally instead of from abroad—will create a demand
for upstream products and ensure more vertically integrated development. Such a
scenario can indeed have a positive outcome, especially when the margin of
preference (calculated as the difference between preferential entry and duties liable
under normal tariff relations) of exporting duty-free is sufficiently large, and of equal
importance, where profit margins are not overly tight, thus allowing producers to
absorb the cost of sourcing from perhaps less favourable locations. Goods in
industries that are typically part of producer-driven value chains may more readily fall
into such a scenario, including, for instance, the motor vehicle manufacturing
industry.
The impact of restrictive origin rules as a guise for promoting development will be
entirely different in products and industries that face far tighter margins and higher
competitive pressures, especially those where the dynamics are such that they could
be described as forming a part of buyer-driven value chains, as is generally the case
in the clothing manufacturing sector. Here margins are tight and prices largely
determined by buyers rather than by producers; RoO that restrict the choice of
producers to source their inputs from the most competitive sources will invariably
remove producers’ competitiveness and stifle trade and development.3
It is open to debate whether RoO should be seen as a vehicle for development,
although few would argue that RoO especially between unequal trade partners (for
example the EU and a developing country) should be development-friendly. In this
context, upstream development and local processing are seen as the key objectives
3 An example that may be relevant here is the RoO facing the clothing sector under the EU Cotonou
Agreement or GSP, which essentially require two stages of domestic processing including the use of local or regional fabric. These provisions have done little to incentivise upstream fabric production among African countries and have over the past few decades resulted in only very marginal exports of clothing to the EU.
20
of RoO, besides preventing trade deflection from countries with less favourable
market access to a given trade partner. Proponents argue that RoO should at all
times have a developmental dimension, and that well-crafted RoO are of critical
importance in ensuring long-term and sustainable benefits to the signatories of a
preferential trade arrangement.
Sceptics of RoO as a tool for development argue that it is not the responsibility of
RoO to provide the incentive for development, and that good intentions in this regard
are likely to fail (as highlighted by the example of the clothing sector earlier). Any
incentive to further upstream development will only be successful if this fits in with
important commercial realities of the sector in question, and further, is heavily
influenced by both the exporting and importing country’s economic policies, industrial
environment and general business and trade dynamics. Further, the latter would
argue that RoO should only be focused on providing ready access to foreign markets
in the most liberal way possible, while still ensuring that origin rules require sufficient
local processing in order for the exporting country not to become a transhipment
route, thereby undermining the underlying preferential trade arrangement that
connects it to its trade partner.
Derogations
Derogations refer to mechanisms whereby changes can be made—usually
retrospectively and on a temporary basis—to the RoO governing a preferential
trading relationship between two or more countries. Normally, prior to a derogation
being agreed to, appropriate derogation mechanisms must be in place, for example a
joint committee comprising officials from all countries concerned. Furthermore,
special circumstances should warrant a derogation. Derogations are usually country-
specific and time-bound, and take into consideration particular circumstances that
prevent a party to an agreement from complying with existing origin provisions.
Derogations may also be quota-based, whereby a waiver from normal origin
requirements is permitted within a specific annual quota limit.4
4 For example, the ACP States have been provided with a derogation for certain tuna products,
whereby subject to a quantitative and time-bound limit the ACP may use a quantity of non-originating tuna for further processing (canning) operations. This is an example of a derogation that might be grounded in the fact that the tuna industry is of critical importance to many ACP States; and for certain parts of the year, tuna stocks migrate in and out of the waters of ACP States as they are a largely pelagic species. See also: 2005/181/EC: Decision No 2/2005 of the ACP-EC Customs Cooperation
21
Derogations are potentially important features of bilateral trade agreements in that
they can augment rules that are drawn up for a group of countries (without being able
to deal with specific circumstances), as well as by accounting for certain supply
weaknesses that may occur from time to time (for example the seasonal non-
availability of a certain input). At the same time, derogation mechanisms serve no
more than a complementary role to the underlying RoO, and should not become
vehicles for circumventing agreed upon origin requirements without proper
justification.
Derogation mechanisms are useful only when the administrative procedures around
derogations are clearly defined, transparent, not overly cumbersome and with clear
time lines attached. In the absence of a clear framework for derogation procedures,
the process becomes overly cumbersome and negates any potential benefit that
applicants (countries) may derive from it.
The absorption principle or "roll-up"
The absorption principle consider goods and materials that have gained local origin
by undergoing substantial transformation to be treated as forming part of local
content when used in any further processing. In other words, no account should be
taken of the non-originating materials of a product that has already earned
"originating status".
Using the textile and clothing value chain as an example, where the relevant RoO
might require that a good is made up of at least 50% local content, fabrics can be
used which in turn may have acquired local origin status by having been transformed
locally from imported fibres. No account will then be taken of the value of the
imported fibre (contained in the fabric, which is now on its own already considered
"originating") when the determination is made how much local content is contained in
a product. In practice, when applied to the VA principle, a 50% local content rule can
therefore in reality translate into an even larger non-originating content under the
absorption principle (when considering all input costs through the various production
Committee of 1 March 2005 derogating from the concept of ‘originating products’ to take account of the special situation of the ACP States regarding the production of preserved tuna and of tuna loins (HS heading ex 16.04).
22
phases of a product). The absorption principle features in some way or another in
many preferential RoO regimes, including the EU GSP.
23
2. Select sector-specific issues facing African countries in EU preferential trade
2.1 Restrictive Rules of Origin in EU trading arrangements
The nature of EU Rules of Origin
Rules of Origin (RoO) form a core component of preferential trade arrangements, by
defining the terms under which a product is considered as originating in the
preference receiving country and therefore eligible for duty-free or reduced-duty
exports to a preferential trade partner.
While the prevention of trade deflection remains the original objective of RoO, it is
clear that many origin regimes - particularly the EU RoO arrangements - often go
beyond this objective. It could even be argued that in practice, the purpose of RoO is
not to enhance trade but to restrict and control it, and only provide preferences in
sectors that are considered less sensitive to policymakers.
When RoO are developed on a non-reciprocal basis, as is the case in the EU GSP,
the outcome is often one that favours the preference giving countries at least for key
sectors of potential export interest in the beneficiary country. This opens the RoO to
the influence of special stakeholder and lobby groups (mainly of the preference-
giving country), a situation that is potentially exacerbated where RoO are drawn up or
negotiated at the sectoral or even product or tariff line level as is the case with the EU
RoO regime. It is understandable that domestic industries, especially where these
have political clout (for example as a result of their contribution to the economy),
would seek to protect their interests against competition from low-cost or resource-
rich countries that the EU offers duty preferences to.
RoO that are today viewed as excessively restrictive might also be interpreted as
such as a result of changing economic and political realities. For example, as will be
discussed in greater detail later, the economic dynamics of the textile and clothing
industries—including factors of competitiveness, industrial location, industrial
organisation, value chain realities, etc.—are today substantially different to what they
24
were three decades ago when Lomé I was drawn up. What might have been
considered reasonable at the time, given the dynamics of the sector and a generally
high-duty environment, today represents conditions that are outdated and overly
restrictive. The fact remains, however, that the requirements for “substantial
transformation” faced by African countries in order to gain duty-free or preferential
access to the EU market have remained largely unchanged since the earliest Lomé
treaties.
RoO obviously have the potential of playing a positive role in development, for
example where they support an environment that provides incentives for investment,
upstream development and local sourcing. But RoO in isolation will seldom be
development friendly where their fundamental point of departure is to restrict the use
of foreign materials, and to expect producers to source materials from (domestic)
suppliers that might be far less competitive than other (foreign) sources. Exporters
will always prefer sourcing locally if competitively-priced materials are available, or
unless instructed to do otherwise by international buyers, due to the clear
advantages with respect to costs and (not least) language. The EU RoO instead give
the distinct impression of being tools to regulate or restrict rather than induce trade.
While this might not be applicable to all goods, it certainly holds true for some
sectors. Although African producers have the option of exporting to the EU under
various programmes, including until a few years ago under the Cotonou Agreement,
the GSP programme and in many instances the GSP's ‘Everything-But-Arms’, the
RoO are virtually the same in each programme. More recently, a special European
Council Regulation5 has facilitated preferential trade for those ACP countries that
have initialled an Interim Economic Partnership Agreement (EPA) with the EU, and
while these RoO contain some important changes they leave the treatment of most
sectors unchanged from the EU's other RoO regimes.
While the European Commission has begun to revise its preferential RoO regime, the
changes have to a large extent not been particularly ambitious although there are
some exceptions. The Commission has implement some of the RoO revisions in the
new GSP as well as in EPAs (and also the interim market access regulations that
were published as an interim measure).
5 Council Regulation (EC) No 1528/2007 of 20 December 2007
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EU RoO are mainly sector- and product-specific and confer originating status on
goods (exported from the beneficiary country) that are either wholly obtained there, or
which have undergone a process of substantial transformation in accordance with
various set conditions. The EU applies more than one methodological basis: either
the specific processing rule (whereby a predefined production process must be
followed), the use of a value-basis (usually in the form of limiting inputs from certain
input categories, or limiting the value of materials) or a change in tariff heading
(where the materials used must be classified in a tariff heading other than that of the
product). In many instances, elements of more than one methodology are applied,
while in others the exporter has a choice of two or more tests to determine origin.
There is no set pattern that determines the EU’s preferential origin rules. Their
’inconsistency’ is based partly on the fact that no single methodology is ideal in all
circumstances (or rather, applying a single rule would probably create very unequal
origin requirements), and the fact—as alluded to earlier—that the EU’s preferential
origin regime has largely been moulded by its own protective, industrial and
agricultural interests. In the March 2005 Communication on a future Rules of Origin
regime, the European Commission shows the large number of methodological
permutations that feature in the EU’s preferential RoO—with the SP rule applied most
(27.5% of total) followed by CTH (18%) and a combined CTH / VA approach (17.2%
of total). These figures are overall numbers applicable for the entire range of EU
preferential RoO.
2.2 Specific sector-related RoO issues in EU trade agreements
The EU’s current RoO are often blamed as being impediments to greater market
access by its trade partners, who raise the concern that the erosion of preferences
over the past decade or so (mainly as a result of the increasing number of countries
with preferential market access to the EU, and lower EU import tariffs under normal
tariff relations) make compliance with some RoO disproportionately onerous given
the relatively small benefit that often results from 'compliance'. The argument is that
the cost of complying with RoO (for example greater administrative burden,
restrictions on sourcing etc.) must be less than the applicable tariff by not complying
26
with the RoO. The lower the preference margin, the less inclined a producer will be to
export under a given preferential trade arrangement.
Two sectors stand out for having traditionally been subject to highly restrictive RoO
within the EU RoO regime, namely textiles/clothing and the fisheries sector. While
other issues also play a role in undermining exporters' access to the European
market, notably supply-side constraints in many developing countries, the cost of
logistics in getting products to market, bureaucratic hurdles, standards (for example
sanitary and phytosanitary), RoO remain a key determinant in whether producers are
able to export their products to the EU under trade preferences.
Textiles and Clothing
Global trade in textiles and clothing was valued in 2005 at almost US$ 500 billion -
split roughly 60:40 in favour of clothing - based on WTO estimates6. Double digit
growth was recorded in the mid- to late 1980s, and again in the early parts of this
century, probably as a result of further integration of the sector with normal trade
disciplines under the WTO Agreement on Textiles and Clothing (ATC). Although the
WTO data currently does not reflect post-2005 trade, the year when the ATC fell
away, indications are that the growth in trade has accelerated notwithstanding the
subsequent protective measures imposed by the world’s largest importers of textiles
and clothing, namely the United States and Europe.
Textiles and clothing exports are of great importance to developing countries, where
much of the production (especially in the clothing sector) takes place. Clothing
manufacture is labour intensive and provides relatively low barriers to entry, and has
long been promoted by developing countries as an entry point for greater economic
diversification and upgrading. Clothing manufacture and exports have evolved into
highly competitive activities, where only the least-cost producers are able to survive
without special market preferences. No ACP country features amongst the leading 15
clothing or textile exporters in the World.
The EU maintains relatively high import tariffs for textiles and particularly clothing,
with imports of the latter attracting two-digit duties. Considering the highly competitive
6 http://www.wto.org/english/res_e/statis_e/its2006_e/its06_bysector_e.htm.
27
nature of clothing production, a reduction or waiver of import duties on these items is
therefore likely to have a significant impact on the ability of exporters to compete,
especially in the case of ACP developing countries relative to the low-cost producers
in South East Asia. Considering that the EU is the single largest importer of textiles
and clothing, its RoO become particularly relevant to ‘marginal’ exporters—exporters
(from countries) not normally considered to be amongst the lowest cost producers of
textiles and clothing globally.
RoO for textiles and clothing have traditionally (and in many instances still do)
required a ‘double transformation’ in order to be considered to be recognised as an
originating product of the exporting (beneficiary) country. In other words, materials
must go through two distinct production processes, which in the case of clothing
might entail the conversion (weaving) of yarn into fabric, and the conversion (cut,
make and trim, or making up) of fabric into garments. Alternative processing
requirements apply to garments that are embroidered, or which fall into a category
which is further differentiated (for example embroidered clothing, which as an
alternative can be made up from unembroidered fabric provided the value of the
unembroidered fabric used is less than a certain percentage of the ex-works price of
the product).
For textiles, the concept of ‘double transformation’ has been applied in a similar
manner as to clothing. For cotton yarn, the RoO requirement normally entails the
manufacture from coir yarn, natural fibres, man-made staple fibres not carded or
combed or otherwise prepared for spinning, or chemical materials, textile pulp or
paper. The conversion of, say, natural fibres to yarn entails a distinct stage of
transformation, while the weaving of yarn into fabric entails another.
Under current rules an alternative requirement for qualifying printed textiles fabrics
entails the printing process as well as at least two further preparatory or finishing
operations (such as bleaching, mercerising, impregnating, scouring, etc.), and that
the value of the unprinted fabric may in turn not exceed a certain percentage (usually
47.5%) of the ex-works price of the product. In reality, this implies that low-end fabric
will not readily qualify for the status of ‘originating’ (since the cost of the source
material constitutes a high proportion of the total cost), but instead may be limited to
28
high-end fabrics where significant value-adding activities have taken place to the
source material.
Issues and challenges
At issue here is whether the current rules impose an unreasonable obligation on
producers in beneficiary countries, a question that needs to consider some of the
dynamics prevalent in the global textile and clothing industries. In particular, it is
necessary to understand the important role of value chains.
Value chains describe the chain of productive (i.e. value-adding) stages of a
product’s manufacture, beginning with raw material extraction to final end-use. In
other words, value chains incorporate aspects of production, distribution (i.e. logistics
and marketing) and consumption. An analysis of a sector’s value chain allows the
identification of where value is created during a product's life cycle from manufacture,
distribution and end-use. While a traditionally held view is that value is created
predominantly in the manufacturing process, this is often no longer the case today.
Design, marketing and logistics play an increasingly significant role in the final make-
up of a product’s value. Likewise, these activities are increasingly undertaken in
different locations, and are often not confined to a single country. This is particularly
true for the textile-clothing pipeline.
One of the most important dimensions of value chains involves the control over the
economic activities in a product life cycle. Control may be balanced where no firm or
single stakeholder (for example producer, retailer) wields an undue influence. In
‘producer-driven’ value chains, which are typically found in the capital or technology-
intensive industries (for example the automotive and computer industries), producers
are normally able to exert the most influence. In producer-driven value chains, factors
such as proprietary technology and know-how often represent defining barriers to
entry, with such industries often consisting of large multinationals.
The textile and clothing sectors typically fall into the definition of ‘buyer-driven’ value
chains. These value chains are usually defined by a large number of
operators/producers, high labour intensity, and typically feature industries where
29
design and marketing, rather than actual production, play leading roles. In fact,
investment in design, branding and advertising are important barriers to entry.
In the global textile and clothing industry, a number of large multinational brand-
owners and retail chains exert a large degree of control over production generally,
either directly or indirectly. International brand-name owners play a major role in
determining the design of their range of garments, and invest large sums in branding
and supply chain management. Production becomes almost secondary in nature; as
is typical in buyer-driven value chains decisions around production and sourcing are
determined or influenced to a large extent by these multinationals rather than by
producers. Production is often not very specialised, as a result of which buyers are
able to choose where to source their products from, and to a large extent (effectively)
also the price that they are willing to pay.
In general clothing production, producers are therefore unable to exert much
influence on the price of a garment, but are often also limited as to where they may
source their input materials from. Costs and price structures are generally well known
in the market place, and it is typically up to the producers to indicate whether they are
able to supply on time, at the predetermined price, and in the required quantities. As
is typical in production of commodity-type goods (including basic garments),
producers exert little influence on the selling price as this is virtually a given; rather,
profitability and sustainability lie in the improvement of production efficiencies and
internal cost structures.
While numerous other factors have contributed to the wide proliferation of textile and
particularly clothing production globally, the result of these value chain dynamics is
that any restrictions (imposed on producers) which do not complement these realities
are likely to severely undermine the ability of textile and clothing producers to
compete globally. This is particularly so in cases where a country is not globally
competitive along the entire production chain. Most, if not all, ACP countries fall into
this category.
Opponents of a more flexible approach to origin rules for textiles and clothing will
argue that a more source-neutral dispensation (i.e. rules where producer have
greater flexibility over their sourcing options from a greater number of countries) is
30
likely to result in a rapid decline in all but the most basic clothing assembly activities.
The argument goes further that by allowing producers to use inputs irrespective of
their economic origin will in effect transfer the economic benefits of textile and
clothing production away to unintended beneficiary countries (namely the suppliers of
materials), will significantly reduce local value-added and will remove any incentive
for investment in upstream activities (relative to that of the final product).
The reality, however, remains that more than three decades of Cotonou-type RoO for
textiles and clothing have failed to provide sufficient incentive for any significant and
lasting textile manufacturing industry, notwithstanding local incentives and
government support policies. This is despite the fact that the EU’s high tariff-based
trade barriers and quantitative restrictions imposed on many of the lowest-cost
producers globally, have also for many years provided exporters in beneficiary
countries with a significant competitive advantage over exporters from other
countries.
Fisheries
Fish represents another ‘special interest’ area, both from the perspective of market
access and RoO, but also in terms of the sector’s importance to the countries that
export it (to the EU), as well as to operators within the EU itself. Trade in fish
products is consequently subject to wide-ranging economic and political sensitivities,
while the EU’s RoO regime relating to fish has long been the subject of unhappiness
particular in some actual or potential supplier countries.
The EU essentially differentiates between fish (and other seafood products) caught in
inland waters (rivers and lakes) and up to the 12-mile territorial zone on the one
hand, and fishery products from outside the 12-mile zone. Fish caught inside the
zone is automatically considered to be originating in the exporting country and has no
further origin conditions and obligations imposed on it.
Fish caught beyond the 12-mile territorial zone is subject to restrictions relating to the
definition of ‘wholly obtained’ as well as from the product-specific RoO for fish and
processed fish products. Since much of the commercial fishing effort is assumed to
take place beyond the territorial zone, the RoO applicable to fish are indeed highly
31
KENYA
relevant, especially with respect to countries that do not have a significant
domestically-owned fishing fleet.
One of the underlying
principles applied to the origin
of fish is the assumed
nationality of the fishing
vessel rather than simply the
location of the fishing activity.
The latter point will be
described more fully below,
but essentially revolves
around the fact that the
economic jurisdiction (and
management of the economic benefits derived there-under) over a country’s
adjoining sea extends far beyond the territorial definition used by the EU RoO
regime.
The wholly-obtained principle provides further detail on the RoO applicable to fish.
The following is taken from the previous Cotonou Agreement (the equivalent rules
contained in the subsequent EPA are listed further down). Fisheries provisions are
generally similar across EU trade regimes. Article 3(1)(e)-(g) of Protocol I, Annex V
to the Cotonou Agreement, stated inter alia that wholly obtained products include:
32
While provision was made for the African, Caribbean and Pacific countries (ACP) to
use chartered vessels (to conduct fishing activities up to the 200 mile Exclusive
EU RoO: Wholly obtained principles relating to fish Source: Cotonou Agreement
(e) “products obtained by hunting and fishing conducted there”
(f) “products of sea fishing and other products taken from the sea outside the territorial waters by their
vessels” (emphasis added) and
(g) “products made aboard their factory ships exclusively from products referred to in subparagraph.
“Vessels” and “their factory ships” are further defined, and variation to this definition occurs in different
agreements.
In the Cotonou Agreement:
◘ qualifying vessels must be registered in an ACP or EC State;
◘ must sail under the flag of an ACP or EC State;
◘ ownership: at least 50% by nationals of an ACP or EC State;
◘ at least 50% of the crew, master and officers included, must be nationals of the ACP or the EU.
EU RoO: Wholly obtained principles relating to fish Source: EU-SADC IEPA
(e) (i) products obtained by hunting or fishing conducted there;
(ii) products of aquaculture, including mariculture, where the fish are born and raised there;
(f) products of sea fishing and other products taken from the sea outside the territorial waters of
the Community or of the SADC EPA States by their vessels;
(g) products made aboard their factory ships exclusively from products referred to in (f);
2. The terms "their vessels" and "their factory ships" in paragraph 1(f) and (g) shall apply only to
vessels and factory ships:
(a) which are registered in an EC Member State or in an SADC EPA State;
(b) which sail under the flag of an EC Member State or of an SADC EPA State;
(c) which meet one of the following conditions:
(i) they are at least 50 percent owned by nationals of an EC Member State or of an SADC EPA State; or
(ii) they are owned by companies which have their head office and their main place of business in an EC
Member State or in an SADC EPA State; and which are at least 50 percent owned by an EC Member State
or by an SADC EPA State, public entities or nationals of that State.
33
Economic Zone (EEZ))7, a set of other conditions have made this option unfeasible to
many operators. Under Cotonou, the exporting state would have to submit an
application to the ACP-EC Customs Cooperation Committee, which considers
whether the proposed lease provides adequate opportunities for developing
(unspecified) capacity in the ACP fishing industry. The requesting state must further
have offered the EU the opportunity to negotiate a bilateral fisheries agreement,
which entails preferred access for EU fishing vessels in the EEZ of the requesting
state (fish caught by EC vessels under such arrangements no longer qualifies as
ACP fish but is considered EU fish). The offer to negotiate a bilateral agreement must
have been declined in order for the leasing of vessels to be considered for catching
fish that is considered as originating in the ACP State. Notwithstanding these
requirements, the crew conditions (50% or more local or EU nationals) remain in
place.
Despite the large degree of similarity between the RoO for fishery products across
the EU’s preferential trade arrangements, the Cotonou Agreement (had) traditionally
provided slightly more flexibility with respect to the ratio of ACP/EU nationals to
foreigners employed on qualifying fishing vessels. The EU GSP (including Everything
But Arms (EBA)) until recently required 75% of the crew to be nationals of the
beneficiary State (or the EU), and that the captain and officers are all nationals of the
beneficiary State (or the EU). The crew conditions were removed from the GSP
regulations at the start of 2011.
The wholly obtained principle and its associated conditions pertain to the core origin
requirements relating to fishery products. The specific RoO for fish (contained in HS
Chapter 03: fish and crustaceans, molluscs and other aquatic invertebrates) require
‘manufacture in which all the materials of Chapter 3 used must be wholly obtained’.
This means that the ‘wholly obtained’ provisions apply.
Some processed fish products are categorised within Chapter 16, specifically 1603
(‘extracts and juices of meat, fish or crustaceans, molluscs or other aquatic
7 The delineation of territoriality and the EEZ is found in international maritime law, with the UN
Convention on the Law of the Sea (UNCLOS) defining the territorial sea as extending up to 12 miles from a country’s coast. The EEZ refers to the sea beyond the territorial sea and up to 200 miles offshore. Countries have exclusive economic rights over the EEZ, although this does not extend to certain traversing rights.
34
invertebrates’) and 1604 (‘prepared or preserved fish; caviar and caviar substitutes
prepared from fish eggs’). The Cotonou RoO required, for any processed fish
products, that ‘all the materials of Chapter 3 used must be wholly obtained’. This
meant that the same conditions apply as for Chapter 3 fish products, and that the
further processing (for example HS1604.1311 ‘sardines in olive oil’, or HS 1604.1411
‘tuna in vegetable oil’) is insufficient on its own to confer origin. Besides the market
incentives provided by further beneficiated fish products (for example higher prices),
the RoO prohibit the use of non-originating fish content irrespective of the value that
is added by the further processing activities.
A slight mitigating factor to the above is the fact that the Cotonou RoO provided for a
limited automatic derogation of the above rules in the form of an annual quota (to be
divided amongst ACP States as appropriate) of tuna fish that was not required to
conform to the above rules.
Various changes to the fisheries RoO were introduced through the interim EPAs.
These involve a slight relaxation of the conditions pertaining to qualifying vessels and
ownership. The crew requirement (previously 50% had to be EU or local nationals)
has been removed and the requirements relating to fish caught beyond the territorial
waters are slightly relaxed. The EPA rules also include a slight derogation specific to
fish involving the use of up to 15% non-originating fish - applicable to parts of chapter
3 as well as the processed fish categories (canned tuna etc) found under chapter 16.
Further details in the next section.
The new GSP RoO8 that were published at the end of 2010 and which came into
effect at the start of 2011 keep the "list rules" unchanged, with all fish materials from
chapter 3 having to be wholly obtained in the exporting country. The wholly obtained
requirements may be met in combination between more than one beneficiary country.
The wholly obtained provisions have however been relaxed slightly from the previous
GSP rules. The crew requirements (previously 75%) has been removed and the rules
now require only that the vessel must be registered in a beneficiary country (or EU
Member State) and sail under its flag, and be at least 50% owned by nationals or
8 Commission Regulation (EU) No 1063/2010, December 2010
35
local corporations. Ownership criteria are interchangeable between the EU and GSP
beneficiary country.
2.3 Recent changes to EU-ACP RoO in EPAs and in the EU GSP
Textiles and clothing
During the EPA RoO discussions, agreement was reached to lower the
restrictiveness of the existing RoO for textiles and clothing to bring these more in line
with the global production realities and competitive pressure faced by producers. In
essence, the RoO changed the requirements for qualifying textiles and apparel from
a two-stage local transformation to a single-stage rule, which allows clothing and
textile producers to utilise non-originating fabric and yarn respectively in the
manufacture of qualifying goods under the EPA.
These changes have only been implemented as follows: until such time that ACP
countries have implemented the Interim EPA, a special Council Regulation by the
European Commission - published in December 2007 and shortly before the expiry of
the Cotonou Agreement - has been put in place to facilitate preferential access to
qualifying ACP countries. This regulation applies only to those countries that have
initialled an Interim EPA; non-signatories fall under the GSP or any other bilateral
agreement, albeit whose RoO requirements for this sector were also changed with
implementation date 1 January 2011.
For clothing the most significant impact has been a change to the rules which now
requires that qualifying garments must simply be made from fabric, irrespective of the
origin of such fabric. The implication of this global sourcing rules is that producers
may source their fabric requirements without restrictions, and based purely on
commercial prerogatives rather than restrictions imposed by the RoO.
For textiles, a similar simplification to the rules has been implemented and is similarly
contained in the Council Regulation as well as the RoO of the various EPAs. Textile
rules are now also based on the principle of single-stage transformation: for fabrics,
this entails manufacture from yarn (which may be of any source), which implies that
only the weaving of the fabric must take place locally. Alternatively, printing plus two
36
prepatory or finishing operations undertaken on non-originating raw fabric can,
subject to conditions, confer origin. For yarn itself, the qualifying conditions have
remained unchanged.
"Old" RoO (Former Cotonou Agreement,
GSP / EBA)
EPA RoO (EPA / Market Access
Regulations)
A B
Yarn (e.g. HS 5204: cotton yarn)
Manufacture from natural fibres not carded or combed or otherwise prepared for spinning or chemical materials or textile pulp [of any source]
Same as previously
Fabric (e.g. HS 5208: woven fabric of cotton)
If incorporating rubber thread: Manufacture from single yarn [of any source], otherwise manufacture from natural fibres, coir yarn, man-made staple fibres not prepared for spinning [of any source] or Printing plus 2 preparatory or finishing operations provided that the non-originating unprinted fabric is valued at less than 47.5% of the ex-works price of product
Manufacture from yarn [of any source] or Printing plus 2 preparatory or finishing operations provided that the non-originating unprinted fabric is valued at less than 47.5% of the ex-works price of product
Knitted fabrics (Chapter 60)
Manufacture from natural fibres or man-made staple fibres not prepared for spinning or chemical materials or textile pulp [of any source]
Manufacture from yarn [of any source]
Clothing (not knitted) (e.g. HS 6205 Shirts)
Manufacture from yarn [of any source]
Manufacture from fabric [of any source]
The EU GSP RoO were updated on 1 January 2011 and contain a number of
changes, inter alia to the textiles and clothing provisions. The revised rules are less
restrictive than the old rules and in many respects on par with the EPA rules. The
GSP RoO also differentiate in some areas between countries that are classified as
LDCs and other GSP beneficiaries, with LDCs offered more flexible rules.
37
The most noticeable change is the fact that the GSP RoO for LDCs are changed to a
single transformation rule for clothing. Items of clothing qualify provided that they are
made up locally, in other words, the cut make trim (CMT) processing is done in the
country of export. In this instance it does not matter whether the fabric used is
produced locally or is imported from third countries.
For non LDC beneficiary countries, the fabric must also be produced locally (weaving
in the case of woven garments from chapter 62, knitting in the case of knitwear from
chapter 61). This requirement is significantly more onerous than the LDC rule and
puts garment producers in beneficiary countries not classified as LDCs, or those that
qualify under the EPA or interim EU market access provisions, at a significant
disadvantage.
New EU GSP RoO
Yarn (e.g. HS 5204: cotton yarn)
Spinning of natural fibres or extrusion of man-made fibres accompanied by spinning
Fabric (e.g. HS 5208: woven fabric of cotton)
Rule for LDC countries Weaving [from fabric of any source] or printing plus two preparatory or finishing operations (as per table above) Rule for other GSP beneficiaries Spinning of natural and/or man- made staple fibres or extrusion of man-made filament yarn, in each case accompanied by weaving or Weaving accompanied by dyeing or by coating or Yarn dyeing accompanied by weaving or Printing
Knitted fabrics (Chapter 60)
Spinning of natural and/or man-made staple fibres or extrusion of man- made filament yarn, in each case accompanied by knitting or Knitting accompanied by dyeing or by flocking or by coating or Flocking accompanied by dyeing or by printing or Dyeing of yarn of natural fibres accompanied by knitting or Twisting or texturing accompanied by knitting provided that the value of the non-twisted/non-textured yarns used does not exceed 47,5 % of the ex-works price of the product
Clothing (not knitted) (e.g. HS 6205
Rule for LDC countries Manufacture from fabric
38
Shirts) Rule for other GSP beneficiaries Weaving accompanied by making- up (including cutting) or printing plus two preparatory or finishing operations (as per table above)
Fishing sector products
The EPAs have also led to changes to the fishing sector RoO. These are largely
contained in the "wholly obtained" provisions which set out the conditions pertaining
to the location of fish caught, conditions around the vessel and leasing and chartering
arrangements.
One of the changes concerns the requirement that at least 50% of the crew, master
and captain of the vessel included, had to be nationals of the ACP country or the EU.
This condition has now been removed under EPAs (and under the interim Council
Regulation on ACP-EU RoO), which now allows crew of any nationality to be hired by
vessels engaged in catching "originating" fish.
Similarly, the conditions attached to the ownership of a qualifying vessel have been
simplified. Previously (under the Cotonou Agreement), the Chairman of the Board of
Directors or Supervisory Board, and the majority of members of such boards, were
required to be nationals of States party to the Agreement. Under Cotonou, this
implied any ACP State(s). This specific requirement has been removed, although
other ownership requirements remain largely the same.
An important (and controversial) issue which remains largely unresolved is the
treatment of fish caught within a country's Exclusive Economic Zone (EEZ), which EU
RoO do not recognise explicitly except in so far that they limit leased or chartered
vessels from operating on the high seas (the area outside of the EEZ). Some
countries, notably Namibia, continue to protest this issue by insisting that fish caught
within its EEZ should be considered to be fish of local origin when landed locally,
given the fact that Nambia's fishing legislation recognises fish as such and
39
considering that Namibia has strong rules in place to monitor any fishing activity
within its EEZ. Similarly, the Cariforum EPA group also continues to engage the EU
on this matter. Only the Pacific region has received a special derogation with respect
to fish, which allows global sourcing of fish material when used to make up goods of
Chapter 16 (processed fish, for example canned tuna). The EU consented to this
derogation largely due to the fact that it has few direct fishing interests in this region
and for the EU's distant water fleet the Pacific, at this stage, is of relatively lower-
order interest. For the Pacific, this was the single most important concession on RoO
as its actual and potential exports to the EU are almost exclusively in the fishing
sector.
The chartering and leasing provisions were also changed in the EPA provisions (they
remain the same as under Cotonou in the interim EU market access regulations, ),
and instead of requiring an offer (by the ACP country to the EU) of negotiating a
fisheries partnership agreement now only requires the offer to the right of first refusal
for a leasing and chartering agreement.
A specific 15% value tolerance was also introduced for some parts of Chapter 3
(applicable to those fisheries products that were further processed, such as filleted
fish, molluscs in brine etc.). The tolerance permits up to 15% non-originating fish
materials for these product categories. However, considering that previously the
Cotonou Agreement (and again the EPAs) already contain a general 15% tolerance
for all products, including fish, this specific tolerance will be of little value to producers
and exporters.
Reference in
SADC-EC IEPA
(Rules of Origin
Protocol)
Description Summary of Change
40
Article 5
Definition of “wholly
obtained”
� expands definition to include “products of
aquaculture, including mariculture, where fish is
born and raised there”
� removes requirement that crew of qualifying
vessels must be at least 50% local / EU nationality
� removes crew requirement from conditions
involving charter vessels
� slightly simplifies conditions relating to vessels
(where fish is caught beyond territorial waters)
Appendix 2
“List rules”: Working
and processing required
to confer local origin
� introduces 15% “non-originating” tolerance
applicable to parts of Chapter 3 (fish) and 16
(processed fish products)
Issues and challenges
The RoO for fish are not without controversy and different countries are impacted by
them in different ways. The rules are premised on the EU’s desire to provide market
access to ACP States while keeping this within the confines of strong politico-
economic pressure from EU Member States. Various countries have a strong interest
in the fisheries sector, either as a result of large domestic fishing fleets or substantial
investment in processing facilities. Dwindling fish stocks in EU coastal waters and
increasing environmental pressures regarding sustainable resource utilisation has
forced EU fishing interests to look further beyond its own areas of jurisdiction. RoO,
and particularly bilateral fisheries agreements, can play an important role in ensuring
considerable access to fishing stocks in ACP countries.
For ACP countries with a strong commercial fishing industry the current RoO—
insofar as the wholly obtained principle is applied—do not appear to pose an
excessive burden even if the obligations there under may not be considered to be
altogether reasonable. Ownership, registration and crew components are readily
complied with for fish caught beyond the territorial waters. Countries such as Namibia
(incidentally the largest exporter of fish amongst the ACP group) and the Seychelles
41
have on the whole been able to comply with current regulations (although it is not
known to what extent they would have benefited from a more flexible dispensation). A
potential handicap relates to the flag/registration of the vessels, since the dynamics
of the maritime industry are often considered to be unique, for example with regard to
registration of vessels in certain territories for insurance and taxation-related reasons,
or due to the fact that the obligations on the vessel’s owners with respect to safety
certification, tonnage and so forth may possibly be more lenient. Also, the challenges
around potential leasing of vessels, and the pressure on concluding bilateral fishing
treaties with the EU, may have both positive and negative implications for exporting
countries.
For smaller countries with less established commercial fishing industries, the current
rules are often considered a hindrance perceived as being obstructionist rather than
helpful in preventing trade deflection. This hindrance relates mainly to the restrictions
placed on vessels and crew fishing beyond the territorial waters, and effectively
prevents countries from utilising foreign (non-EU registered) vessels. Leasing of
fleets is not a practical option due to the onerous conditions attached to this, and is
likely to receive a go-ahead from the ACP-EC Customs Cooperation Committee only
if the utilisation of fish stocks is of little interests to EU operators (who would then
instead push for the conclusion of a bilateral fisheries agreement). The benefits of
such bilateral agreements, especially to the country in whose economic zone the
subsequent fishing effort takes place, are not entirely clear, as licensing and quota
fees are considered in many cases to be low, and little control over actual catches is
possible. In fact, other than the ’user fees’, exporting countries often stand to benefit
relatively little from such arrangements, and appropriate control mechanisms
implemented to monitor circumvention of the agreement is often said to be lacking.
Where countries lack the ability to utilise their fishing resources themselves, and are
tied into arrangements of supplementing own crew and vessels with EU manpower
and vessels, an additional administrative burden enters the equation. Also, EU crew
and vessels are known to be less competitive than, say, operators from Southern
Asia, which may have a negative impact on downstream competitiveness of this
sector’s products. For example, further processed fish products, which are already
burdened by the need to contain only wholly obtained fish, and may be less
competitive in the European market as a result of these RoO-related restrictions.
42
Current EU RoO do not ‘reward’ the further processing of fish products (contained in
HS 1603 and HS 1604), irrespective of the industrial effort required and value added.
This slightly peculiar situation raises question about the intention of EU RoO for
processed fish sector products—whether to prevent trade deflection or to act as a
protectionist barrier to trade.
One way to reduce the restrictiveness of current RoO on exporters to the EU is to
revise the conditions underlying the ‘wholly obtained’ principle relating to fish. The
new EPA rules, and to some extent the revised GSP rules, have helped making the
fisheries requirements less restrictive. While there is no special administrative
requirement for fish caught within the territorial waters, considering that much of the
commercial fishing effort takes place beyond this zone, the current rules could still be
simplified further and have a significant impact by enlarging the ‘cut-off’ in terms of
the approved fishing zone, before the stricter vessel requirements begin to apply. It
has been suggested that extending the treatment currently afforded to inland and
territorial fish to the 200-mile EEZ would substantially lighten the burden of
compliance and automatically deem fish caught within miles as being of local origin.
This would also affect much of the commercial fishing activity.
There have been arguments against this, mainly from the EC but also from some
ACP countries currently complying with the RoO and fearing an influx of lower-cost
participants from third countries, able to meet the EU RoO. But here the role of
domestic fishing policy and regulatory environment needs to be emphasised. The
EEZ remains the exclusive economic domain of the adjoining state, meaning that
simply because the RoO could consider fish caught within this much larger fishing
area as being of local origin (without having to comply with ownership and crew
requirements), this does not transfer any rights to foreign operators. International
maritime law states that there can be no automatic entry of foreign-registered boats
to conduct fishing within the EEZ, as foreign vessels’ rights within this zone are
limited to passage only. So while broader flexibility in the RoO essentially further
‘opens the door’ to the EU market, it does not transfer rights to third parties. It does,
however, allow exporting countries to determine the extent to which it permits third
countries to utilise its fishing resources (with a view to exporting to the EU market).
43
The drawback to this, of course, lies in the ability (or inability) of countries to
effectively and sustainably manage their fishing stocks and permit access to a
greater variety of third country vessels should there be a need for this in the absence
of locally owned commercial fishing fleets. It must be acknowledged that such an
arrangement potentially introduces environmentally unsustainable incentives, just as
the current arrangement has introduced incentives that have not always been in the
best interests of the exporting country concerned.
Other sectors
Supply side constraints and other trade barriers often play a critical role in restricting
the ability of ACP exporters to compete successfully in the EU, particularly in
processed goods. Nevertheless, some RoO provisions continue to impose barriers
on the ability of ACP producers to export originating products to the EU under
preference.
One such provision relates to the use of sugar content, which affects various
products (for example processed fruit products such as jams and marmalades in HS,
preserved fruit in HS 2006, fruit juices in HS 2009, white chocolate in 1704 and cocoa
based chocolate of Chapter 18, confectionery in 1704, etc.). These products are not
allowed to contain sugar content valued at more than 30% of the ex-works price of
the product, failing which they do not comply with the RoO.
This restriction affects ACP countries that are competitive in processed goods
containing sugar, especially when these countries also have ready access to raw
sugar. An example is Swaziland, which has a strong processed food industry (jams,
canned fruit, etc.), and is also a producer of sugar. Making matters worse, Cotonou
contains a large list of products (including fruit and vegetable products) excluded
from cumulation with neighbouring South Africa, likewise a member of the Southern
African Customs Union (SACU), which further curtails Swaziland’s ability to maximise
economic benefits in the production of affected goods.
Products of the milling industry (Chapter 11) are also impacted on by the current
RoO. The current rules require ‘manufacture in which cereals, edible vegetables,
44
roots and tubers of heading No (HS)0714 or fruit used be wholly obtained’. This
means that the further processing of these inputs, or the location where such
processing takes place, is insufficient to confer origin as all inputs must also be
produced locally. Any shortages of raw materials, even some, would disqualify
products of the milling industry from benefiting under the relevant preferential trade
agreement (the above example is based on Cotonou rules). The cumulation
provisions further reduce the ability of producers to comply with the RoO—unless all
materials are available locally—in that a large number of typical inputs are in fact
specifically excluded from cumulation.
A number of products are produced through the assembly of components. EU RoO
consider ‘simple assembly of parts to constitute a complete product’ as being
insufficient to confer origin, even if a product-specific origin rule has been met.
Insufficient operations are listed in Article 5 of Annex V of the Cotonou Agreement.
This provision is potentially problematic, given the dynamics of certain sectors. For
example, in some sectors the manufacture of components is highly concentrated in
that only few factories worldwide make such components. Contributory reasons to
this situation usually relate to the technical nature of the components, the investment
required to set up operations, and the competitiveness of the product which might
keep out new competitors. LCD screen panels, computer processors and memory
chips may be suitable examples. The final product, for example a notebook or
personal computer, essentially consists of an array of components that are
assembled to form a transformed and substantially different product. Restrictions on
the ‘assembly of parts’, especially given that producers of the final good do not have
the choice of producing certain components themselves (given commercial realities
referred to above), means that certain products will not readily comply with the
applicable RoO.
2.4 Arguments around the issue of less restrictive Rules of Origin
Although the prevention of trade deflection is the original and only truly legitimate
objective of preferential RoO, clearly much more is involved as the make-up of RoO
has important and wide-ranging economic consequences. RoO have become an
important trade policy instrument, and potentially have the ability to help guide or
45
restrict investment flows, protect or expose industries from competition and act as an
enhancement or barrier to regional economic integration.
But preferential RoO need to consider more than protectionist interests, especially
within a bilateral preferential trade framework between economically unequal
partners. RoO should be guided by principles that would help ensure an equitable
outcome to the parties to an agreement. These principles should include, inter alia:
◘ RoO requirements should not be unduly restrictive from the perspective of the
producer
◘ RoO should be guided by the principle of preventing trade deflection
◘ RoO requirements should be transparent and economically defensible
◘ RoO requirements must consider their impact on trade facilitation and
administration
◘ RoO requirements should be consistent with, or guided by, related laws and
conventions
◘ RoO should be enforceable, and should not impose an undue economic or
administrative burden both on the authorities tasked with ensuring compliance as
well as on the producers and other affected stakeholders themselves
◘ RoO should recognise, as far as is possible, their relationship with trade tariffs
and preference margins, and that the overall cost to producers and exporters of
compliance with preferential RoO needs to be substantially less than the cost of
paying import tariffs
◘ RoO and market access/tariff negotiations should ideally be linked
◘ RoO must embrace commercial realities, since restrictive RoO (given tariff
liberalisation) will especially in highly competitive industries be insufficient to
46
induce producers to switch their sources of supply to more expensive local or
regional ones (in order to comply with RoO)
◘ RoO should encourage as far is possible or applicable regional trade within a
preferential trade area through liberal cumulation facilities
The challenge of configuring RoO that subscribe to all of the principles listed above is
extremely challenging, and in reality probably impossible. There may even be some
contradictions contained in these principles, for example the desire for simple
administrative requirements in the context of preventing RoO being circumvented
through trade deflection. Nevertheless, it remains an important task to be guided by
the objective of transparent RoO that ensure that the economic benefits under a PTA
accrue largely to the parties to the Agreement.
A question is whether RoO are indeed still relevant. Indeed, in the absence of tariff-
related trade measures, not only between the parties to a trade agreement but
indeed anywhere in the world (since margins of preferences are present as long as
tariffs, including tariffs on the exports of competitor countries, exist), preferential RoO
would no longer be relevant. Indeed, for any country that removes all tariff-based
restrictions on any imports into its country irrespective of source, and is not part of
another preferential trade area, there is no reason to continue imposing RoO. But the
reality is that such a situation is still a long way off and indeed is unlikely to ever
materialise. This means that RoO will continue to matter and be relevant.
One of the strongest argument in favour of less restrictive RoO—besides the
potential welfare effects that flow from increased international trade and manufacture
to comparative advantage—is that preference margins have decreased significantly
in recent years. These reductions have taken place unilaterally, in the context of
WTO commitments as well as with respect to the increased opening of domestic
markets by developed countries to goods produced in a broader range of developing
countries. Lower preference margins have translated into unbalanced RoO, where
the cost of complying with specific RoO (from an administrative and processing
perspective) bears less and less relation to the cost of entering a given market under
normal tariff relations (i.e. under normal tariffs in line with WTO commitments).
47
Another argument entails the changing nature of production compared with two or
three decades ago. Globally there has been a vast increase in trade, a lowering of
logistics and telecommunications costs, and an increasing specialisation and
concentration of industries and production. Far from being produced within a single
country, most processed goods today contain at least some nonoriginating content.
This is because certain countries (or in highly concentrated industries, certain
producers) are simply far more competitive at producing certain goods and materials
than others; in order to remain competitive throughout the value chain producers
must source inputs from the most competitive sources available. The cost of not
being able to source according to unrestrained commercial business principles may
render processed goods uncompetitive and can have negative implications for
consumer welfare. Of relevance here is a product’s competitiveness in the export
market, since RoO are relevant in international trade.
Furthering this argument is the unique nature of value chains, as was discussed
earlier. Unless producers have the necessary flexibility in order to source materials
from competitive sources, and are able to fit into the commercial realities and
dynamics of their specific sector (for example, garment production houses that are de
facto obliged to utilise fabrics from licensed suppliers in line with their clients’
requirements and cost considerations), RoO may seriously undermine the ability of
producers to export “RoO-compliant” products. In many instances, then, paying
normal import duties or sourcing from more expensive local suppliers may be the
only (theoretical) options available but would simply render them unable to compete
in their chosen export market, especially in highly competitive industries.
Less restrictive RoO are also likely to be development-friendly. While the old notion
of pro-development RoO entailed raising restrictions to force producers to utilise
mainly local or regional inputs, even if such inputs were only available at a higher
price, a new approach is needed that marries pro-development RoO with commercial
realities. If this entails RoO that are source-neutral, which entails rules that impose
few obligations on the sourcing of inputs, then the outcome is likely to be a far greater
uptake of preferential trade and increased investment in downstream processing. The
growth of the garment industry in Lesotho is a case in point: although investment has
taken place mainly in garment assembly operations—a traditionally low-skill and low-
wage industry—this has also entailed the creation of a vast number of new
48
employment opportunities. Rising exports from downstream producers may in turn
incentivise upstream producers to increase their productivity and ability to compete
with foreign suppliers, as it can be safely assumed that downstream producers will
switch to local sources of supply as soon as the cost-differential is reduced (to the
extent that benefits flowing from local sourcing outweigh the potential costs and often
considerable business risks associated with foreign sourcing).
49
3. A timeline of developments and overview of core features of EU RoO reform
3.1 Principles of EU preferential RoO requirements
The European Community implemented the first Generalised System of Preferences
(GSP) in 1971—the first of a number of developed countries to do so—which
effectively reduced or scrapped the import duties of exports from a large number of
developing countries. But a critical component of the GSP was its Rules of Origin
regime, which provided the guidelines under which a qualifying product from an
eligible country could benefit from this preferential trade arrangement (PTA). Without
RoO the GSP would have been immediately undermined by exports originating in
third countries but transhipped through beneficiary countries.
The EU RoO were challenged by the fact that at that time—as is still the situation
today—there was no universally accepted and standard method for determining
origin. While different methodologies were available, none was perfectly geared as
an appropriate RoO instrument and each had its own advantages and drawbacks.
This is rooted in the fact that the methodologies available were generally not devised
with RoO in mind—for example the Harmonised System Nomenclature (HS) used for
purposes of recording trade flows and managing tariff treatment of certain products,
among other uses. Furthermore, the GSP entailed an entirely nonreciprocal market
opening on the part of the European Community, and it was naturally its prerogative
to tailor the preferential RoO as it saw fit. The result was a blend of methodologies
that sought to set appropriate and acceptable conditions for preferential market
access from developing country beneficiaries.
The RoO in the EU preference programmes and FTAs contain a selection of value-
added (VA), specific processing (SP) and change in tariff heading (CTH)
methodologies, as well as a number of hybrid outcomes that combine more than one
methodology. Further, European origin requirements in select cases offer a choice of
methodologies, for example compliance with an SP requirement or a CTH on non-
originating materials.
50
Beyond these underlying methodologies, RoO regimes ultimately adopted by the
European Community feature the concept of cumulation, whereby materials sourced
from more than one of its trade partners may be used as if they were originating.
Limited forms of cumulation are permissible under the EU GSP, while broader
cumulation features in the EU’s bilateral and regional trade agreements. For example
under the Cotonou Agreement, ACP countries are permitted to cumulate production
with each other. The pan-European and Mediterranean system of cumulation extends
this feature to the bilateral trade agreements that the EU has concluded with various
Middle Eastern and North African countries, for example Tunisia, Algeria, Morocco
and Jordan amongst others.
The key facilitating factor for cumulation provisions is the fact that the underlying
trade regimes between the EU and most of its preferential trade partners bear a large
degree of harmony in its origin requirements. As was discussed, cumulation requires
RoO consistency as without it there exists a likelihood that preferential market access
contained in a particular agreement would be undermined by goods transhipped from
another area, even if that particular area also benefits from preferential market
access with the EU. Since cumulation provisions have at their core the outcome that
a product exported to the EU is deemed as originating in the final exporting country
even when some of the materials it contains originate in the customs area of a
cumulation partner (provided that the further processing jointly meets the origin
requirements), cumulation requires that such materials have obtained originating
status through the application of similar origin requirements as of the final exporting
country. Otherwise, where the margin of preference (the difference between
preferential duties against normal tariffs) is sufficiently large, and the origin
requirements sufficiently dissimilar to provide a de facto incentive, trade deflection
would take place. The prevention of trade deflection is clearly a core objective of
RoO.
3.2 A revised RoO framework for the EU
A proliferation of PTAs concluded outside of multilateral WTO forum saw the
emergence of a new set of challenges: that of general trade and market access
policies fine-tuned to specific trade partners, and the potentially complicated array of
51
origin requirements for European importers sourcing from the EU’s preferential trade
partners. Likewise, the plethora of trade agreements created an increasingly
challenging environment for customs officials in the EU, who were being tasked in
interpreting and verifying the originating status of goods entering the European
customs area under specific preferences.
In recognition of these challenges, the EU sought to streamline its market access
requirements, and particularly its RoO. By creating some form of harmony between
the RoO contained in the various PTAs, the EU would provide its stakeholders with a
more predictable and consistent environment in which to complete international trade
transactions, with obvious efficiency benefits. A look at EU PTAs concluded over at
least the past decade already reveals RoO conditions that bear a large degree of
similarity to each other. A more consistent approach also increased Europe’s
negotiating position vis-à-vis its trade partners, as there was less risk of precedents
being set, or concessions awarded, that the EU would be under pressure to replicate
on a larger scale.
But despite the large degree of RoO consistency, or perhaps because of it, the EU
RoO had become somewhat outdated and unwieldy. Commercial realities, such as
global sourcing and regional centres of competitiveness, value chain developments
and natural resource endowments, have had the effect of making some of the EU’s
origin requirements increasingly protectionist in nature. Whereas the old argument
has long been that RoO should help facilitate trade while at the same time protecting
domestic industrial interests, these global changes have meant that both exporters
and importers are often disadvantaged by restrictive origin requirements, especially
when their sourcing and production decisions are not allowed to follow their most
efficient course. An example often cited concerns that of the textile and clothing
industries: whereas three decades ago textile production was highly dispersed, today
only a relatively small number of countries hold a true competitive advantage in this
sector through resource endowments, relevant industrial configurations and
economies of scale. Where downstream garment manufacturers are unable to tap
into these supply networks through restrictive origin requirements, their chance of
remaining competitive even under preferential market access conditions for the final
product is rapidly diminishing.
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Facing increasing criticism from traders in foreign countries as well as internally, the
EU has been under pressure to harmonise and simplify its preferential RoO. This has
eventually led to a process beginning with a Green Paper on the future of (EU) Rules
of Origin, as well as public and internal discussion papers on how to improve the
European preferential RoO regime.
Green Paper on the future of the EU RoO regime
The European Commission (EC) published a Green Paper on the future of RoO in
preferential trade arrangements at the end of 2003. It recognised the need for ‘new
equilibriums’ in (a) the criteria for determining RoO and the framework within which
they are implemented as well as (b) the mechanisms for safeguarding the economic
interests of the contracting parties (countries) bearing in mind the objective of
promoting legitimate preferential trade, and (c) in the responsibilities of those—
essentially customs personnel—involved in the procedures for declaring, certifying,
and checking preferential origin.
The Green Paper ultimately did not offer improvement options with respect to many
of the substantive issues preventing Europe’s trade partners from accessing its
market under preferential access conditions. This was despite the fact—as
highlighted in point (a) above—that one of the key objectives of this process was to
look into the criteria for determining RoO. Specifically, little mention was made of the
challenges surrounding RoO methodologies that the EU had been applying in
determining origin, its impacts on foreign exporters and producers and domestic
importers, and how it intended revising and emending these.
Furthermore, the paper did not in any material way deal with specific sectoral issues,
something which was interpreted in many quarters as one of the main shortcomings
of this initial consultation process. The treatment of offshore fisheries products,
certain agricultural products and the textile-clothing sector have long been regarded
as sectors where the EU’s trade partners—especially developing countries—were
able to maintain a degree of international competitiveness and comparative
advantage.
53
What the Green Paper focused on most were the administrative aspects of managing
the requirements for preferential market access. The EU was finding itself in the
situation where it was party to an increasing number of preferential trade agreements
involving a large number of countries, but also with a growing challenge of ensuring
compliance with the appropriate RoO. Compliance and control issues, and the overall
management of preferential market access for other countries, ultimately became the
main focus of the Green Paper. In this regard, various proposals relating to customs
controls—albeit at the broader policy level—were put forward.
The Green Paper received feedback from a broad range of stakeholders, whose
inputs reinforced the notion that the current RoO regime is excessively restrictive, at
least in some instances. A report by the European Commission on the feedback
received was published in 2004 and concludes—based on the feedback received—
that stakeholders identified the following issues as being key EU RoO-related
challenges (commentary in brackets added):
� ‘the present origin rules do not fit current economic reality’;
[for example, RoO for the garment sector imply a very outdated notion of the textile-
clothing pipeline, namely that it can be classified into distinct stages, each with similar
levels of transformation. The rules generally require two distinct local stages of
production, for example yarn to fabric and fabric to garment conversion, rather than
giving credit for elaborate value-added processes within each ‘stage’]
� ‘that current ROO are seen as being too complex, restrictive and lacking
transparency’;
[the current rules often impose sourcing requirements that restrict producers from
using materials from foreign sources; even where there is a lack of local availability,
economic reality dictates that unless a certain source is used the final product will not
be internationally competitive. This argument can be taken further, where restrictive
RoO may prevent producers to remain competitive within a given value chain, which
may dictate that certain inputs are sourced from a handful of global low-cost
producers or where buyers and retailers go as far as specifying what supply networks
to utilise in order to comply with their particular requirements—a scenario common in
the large-scale garment manufacturing industry]
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� ‘that the current origin rules should be rationalised and simplified’.
[the current EU RoO utilise various different underlying methodologies, and in many
cases apply these in a non-uniform manner—for example where a change in tariff
classification is required at the chapter or 4-digit heading level, where different
technical requirements are enforced, or where value thresholds are inconsistent].
EC Communication on RoO: Proposals for change
Following the Green Paper consultation process, the EC published a formal
communication in March 2005. This document, which took into consideration the
feedback received, was entitled ‘The rules of origin in preferential trade
arrangements: Orientations for the future’. It also represented the most concrete
indication on the shift in thinking on the part of the EC with respect to RoO issues,
and revised systems for ensuring compliance with the appropriate trade legislation.
Furthermore, the document indicated that it would help inform the EC negotiation
position on EPAs. This makes it of particular relevance and interest to ACP countries
as they embark on the post-Cotonou negotiation process.
The March 2005 Communication goes significantly further than the Green Paper as it
deals to some degree with substantive RoO issues rather than mere compliance and
control relating to preferential trade. Nevertheless, the latter continues to form a
critical component of the Communication. Essentially, the two main areas dealt with
are the conditions for a product to be considered as originating (this being the RoO)
and issues involving the implementation and control of trade preferences together
with appropriate instruments to ensure compliance with the relevant terms and
conditions.
► RoO issues
The March 2005 Communication falls short on specifics, especially with respect to
some of the sector-specific issues that are frequently raised as impediments to EU
market access. While the textile, fisheries and agricultural sectors are mentioned, the
Communication largely defers discussion on them beyond an acknowledgement that
some of the issues need to be revisited within an appropriate forum. With respect to
the textile sector, the Communication provides little indication that the EC is prepared
55
to move away from the current RoO methodology, beyond stating that the sector will
require further analysis as well as referring to an earlier (2003) textile-related
‘Communication on the future of the textile and clothing sector in the enlarged
European Union’. In fact, the gist of the EC’s dealing with these sectors evolves
mainly around the challenge of applying an appropriate (local) value-added
threshold, considering that the EC appears to be increasingly in favour of such a RoO
methodology. This is discussed further below.
With respect to fisheries, the Communication suggests changing the nationality
requirement, which currently requires between half and 75% of crew, captain,
ownership and board of directors to be nationals of the exporting country or the EU.
At present, EU RoO for fish shipped under preferential trade conditions impose strict
conditions on fish caught beyond the 12-mile territorial zone (note that fish caught in
inland waters and within the territorial zone are exempt from these conditions and
deemed as originating). The conditions for deep sea fisheries relate to ownership and
flag of vessel, as well as master and crew. In this context, and considering that the
sector is of significant economic importance in many of the EU’s preferential trade
partners, it would be fair to say that the Communication provides little indication of
any significant progress made in liberalising EU market access within this sector.
A major change of direction revolves around the issue of RoO methodologies used in
EU preference regimes. As outlined in the previous Section the EU currently employs
a range of methodologies in the determination of economic origin—value-added,
change in tariff classification and specific processing—usually as a single rule and at
times as combination and/or alternative requirements. In this Communication, the EC
proposes a shift to a single methodology—based on value-added (VA) local content
requirements—to replace the combination of methodologies used at present (it does
concede that in certain instances this methodology may need to be augmented by
additional or alternate rules). This represents a major departure from current norms
and involves a number of complicating issues foremost around the calculation of cost
components (see Box 1 below)—which would need to be resolved. It must be noted,
though, that this single methodology would always be in addition to the ‘wholly
obtained’ principle and applies only to products consisting of inputs made in more
than one country (unless exempted under relevant cumulation provisions).
56
The EC concedes that a single VA threshold may not be appropriate to achieve the
desired outcome, especially with respect to the applicability of the methodology to all
sectors, the level of economic development in beneficiary countries, and the
appropriateness of a given threshold in relation to the actual transformation that
would take place locally. This is a known drawback of the proposed methodology,
especially when applied universally, as different sectors involve different dynamics
and economic realities, particularly when certain inputs are only available (in
commercial quantities and priced competitively) from few sources internationally. This
problem may prevail in certain sectors more than in others, for example the textile
sector or in high-technology industries where a small number of global producers are
able to supply key components competitively (LCD screens, computer memory and
processor chips, fridge compressors, etc.).
Besides the possible use of differentiated local content thresholds between sectors,
as well as in their application to certain countries (for example, least-developed
countries within the EU GSP group of beneficiaries), the EC also acknowledges in its
Communication that VA may not be best suited in its application to agricultural,
fishery or textile products. Some of the EC’s concerns probably relate to the
indivisibility of certain products (for example, applying value-added to fresh/whole
fish), issues around measurability of VA (agricultural products), or the unique
dynamics of the textile-clothing pipeline value chain where similar processes may
entail entirely dissimilar VA outcomes.
Box 1. VA cost calculations
The key to the VA methodology’s specific thresholds lies in the cost components used in determining the final value of the product, and the method for calculating its constituents. The EC Communication proposes a departure from the ex-works basis for determining production cost, a basis widely used in current preferential trade arrangements that the EU is a party to. Ex-works, as it is defined in the Cotonou Agreement (Protocol I, Article 1), refers to ’the price paid for the product ex works to the manufacturer in whose undertaking the last working or processing is carried out, provided the price includes the value of all the materials used, minus any internal taxes which are, or may be, repaid when the product obtained is exported’. While the EC’s most recent (March 2007) draft proposals to the ACP EPA regions reverts to an ex-works basis, this entails a non-binding proposal by the EC and may yet be discarded. Therefore, the production-cost basis proposed earlier, in various forums, is further discussed below. This cost calculation proposed by the EC introduces the concepts of ‘net production cost’ (NPC) and ‘local value content’ (LVC) as the two key determinants in calculating the
57
applicable local content thresholds. Whereas ex-works includes essentially all cost components used in the determination of the final factory gate-price, including mark-up, the method proposed by the EC would apply a far narrower definition to the production price of a product. While the exact methodology has yet to be determined, indications are that NPC would include direct materials (both originating and non-originating), direct labour costs as well as other expenses directly attributable to the production of the final product. Indirect materials, including fuels, electricity, plant and equipment also count towards the calculation of NPC. Other costs, such as packaging and general overheads not directly attributable to the final product, marketing expenses, administrative overheads and mark-up, are excluded. A number of cost elements are yet to be defined to the extent that they should be included or excluded in any cost calculation. LVC is the component of NPC that is deemed as originating in the exporting country, and against which any VA threshold or Sufficient Processing Threshold (SPT) is applied. It is expressed as a percentage of NPC, contains the same cost components as NPC, on the condition that these are of local origin.
100*
xNPC
VNOMNPCLVC
−=
where VNOM is the value of non-originating materials In other words, local content (expressed as a percentage) is the difference between net production cost (as per the permissible cost components) and the value of non-originating cost components. Where local value content percentage (LVC) exceeds a specific threshold—yet to be determined—a product would be deemed as originating in the home country. This methodology can also be used to express a maximum foreign content; in such a case, the difference between NPC and LVC may not exceed a certain threshold. Note that thresholds determined under this proposed methodology are not directly comparable with thresholds determined under the ‘ex-works’ basis, which essentially includes mark-up as local content. An equivalent threshold using pure production cost would typically be a lower value.
► Implementation and compliance issues
With respect to the implementation and control of trade preferences, the
Communication provides an indication that the EC views this as a critical component
of any future RoO regime. Likewise, appropriate instruments to ensure compliance
with the relevant terms and conditions are seen as vitally important to ensure the
success and integrity of a future preferential trade regime.
Under existing trade arrangements, a significant degree of self-regulation takes
place, with customs authorities in exporting countries tasked with developing systems
to ensure compliance with the appropriate trade rules. Whereas a standardised
export certificate is used (EUR.1, or in the case of EU, GSP Form A), customs
58
authorities in the various exporting countries are largely at liberty to implement
tailored systems to regulate the use of preferences, and to verify statements on
origin.
While the current system has mostly worked well, occasional abuses and fraudulent
actions on the part of exporters and customs authorities in some exporting countries
are presumably at least partly behind the new EC proposals on regulating this
process. The Communication proposes a form of ‘self-certification’, but within a much
more controlled environment where specific obligations are imposed both on traders
involved in each transaction as well as the customs authorities in the exporting and
importing country.
To start with, prospective exporters would have to be registered as bona fide and EU-
eligible exporters within a system that—according to indications—would be largely
prescribed by the EC. Although this is presumably as a result of perceived
weaknesses in the current system, there are fears that a more complex system
determined by the EC not only undermines the autonomy of customs authorities in
exporting countries but also substantially increases the administrative burden both on
customs and exporters. The EC has suggested that such a system should include
detailed descriptions of industrial processes and commercial activities, as well as a
demonstrated compliance with any prescribed local value content (LVC ) and net
production cost (NPC ) thresholds.
Various stakeholders have expressed their concern about the lack of local capacity to
implement and enforce such a system, and fear that it will further contribute to a
process that is often unwieldy and cumbersome. Also, in order to demonstrate
compliance with applicable content value thresholds, especially where there might be
a substantial number of cost inclusions and exclusions, this means providing
certifying authorities with sensitive and often proprietary information (for example unit
costs data).
The EC proposals further call for the exporter registration process to require a
detailed description of the exporter’s system to trace origin. This is clearly to aid the
verification process and will to guide customs authorities in their assessment of
59
export shipments, both prior to registration as ‘approved exporters’ and on an ad hoc
basis where deemed necessary.
While there is clearly merit in developing systems that are uniform and ensure a
certain minimum standard, questions may be raised about the perceived loss of
autonomy by customs authorities from exporting countries to implement appropriate
systems and registration procedures, as well as the increased burden on customs
authorities and exporters that this may require. The proposed systems, albeit yet to
be more clearly articulated, place a substantial burden on customs authorities
especially where a lack of resources, including that of competent staff to manage
such elaborate processes, exists. Together with the potential co-liability that might
result from false declarations, already stretched customs authorities in some
exporting countries might become weary of registering exporters or be unable to
commit the necessary resources to ensure compliance with this process. This—a
view expressed by various stakeholders following the EC’s publication of the
Communication—may result in a greater burden on the trade process than is
currently the case, and could be seen as somewhat of a technical trade barrier in
itself.
On the question of liability, the EC proposes that customs authorities in exporting
countries are ultimately liable for the declarations made by exporters—following the
prescribed registration process—and may incur sanction where false declarations on
the origin status of a good result in the avoidance of customs duties. The failure to
comply with these customs systems, for example declarations by exporters which
subsequently prove to be false, could result in the suspension of preferences to the
beneficiary country.
Despite the verification, registration and monitoring systems by customs authorities
proposed by the EC, the other actors in the trade process—importers and exporters
and their agents—will continue to play an important role in the trade process.
Exporters would be required to provide any necessary information to customs
authorities in order to be registered, as discussed above, accept ongoing monitoring
by customs authorities and sign declarations of origin. Importers would provide
statements on the origin of their shipment—based on the information provided by the
exporter—and would need to verify that the exporter is registered and has provided
60
correct information on the origin of the good. Importers would also be required to
provide customs authorities in the importing country with additional evidence to verify
the origin of a good, if requested, and should cover themselves against the risk and
consequences of false declarations with the aid of appropriate commercial and legal
instruments.
Customs authorities in the importing country have an ongoing relationship both with
the (local) importer as well as the customs authorities in the exporting country. In line
with the EC proposals, the customs authorities would accept any claims for a duty-
preference based on the declaration on origin by the importer, subject to requesting
additional evidence on an ad hoc basis or where it is unable to verify origin based on
the evidence provided to it. In such cases the customs authorities in the importing
country may request assistance from the customs authorities in the exporting country
in verifying the origin of the product in question.
Figure 1. Overview of responsibilities of traders and customs agencies
contained in EC proposals
Exporter
▫ Registration with customs
▫ Maintenance of records
▫ Accepts customs controls
▫ Provides statement on origin
Importer
▫ Verifies exporter's statement on origin and
registration
▫ Claims preference
▫ presents supporting evidence on request
(Exporting) Customs Authorities
▫ implement registration systems
▫ moniter registration
▫ de-register exporters that fail to comply
with system
▫ provide importing customs authorities with
necessary support
(Importing) Customs Authorities
▫ accept or reject claims for preference
▫ undertake selective controls
▫ request further evidence from importer
▫ request further evidence from exporting
customs authorities
commercial contract
administrative co-operation
adm
inistrativ
e relationsh
ip
adm
inistr
ativ
e re
latio
nsh
ip
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Consideration by the EC of the "percentage test" methodology: some perspectives
In April 2005 the European Commission followed up on its March 2005
Communication with a Working Paper entitled ‘Justification of the choice of a value
added method for the determination of the origin of processed products’. With this
publication it sought to provide a deeper understanding of its proposal—as
communicated earlier—to replace the current system of determining ‘substantial
transformation’ with one that is largely based on a single methodology. This, the EC
argues, would simplify the determination of origin of processed goods imported from
its preferential trade partners and ostensibly answer critics’ calls for a more uniform
and simple approach to the allocation of origin. The paper also refutes some of the
main arguments against the shift to a VA-based approach.
The Working Paper provides a summary of the RoO system currently used in EU
PTAs. This involves a product imported into the EU originating in the country of a
specific preferential trade partner if such products are either wholly produced there or
have been substantially transformed from non-originating materials. Substantial
transformation is brought about through an application of various tests: based on a
change in tariff classification (usually at the 4-digit ‘heading’ level using the HS
nomenclature); based on a technical requirement (specific processing) or a derivative
of value-added and value-tolerance where for example the material content may not
exceed a certain percentage of the product’s final value.
Besides the various core RoO methodologies, the EC’s current preferential RoO
regime has regulations containing so-called exclusions (this can be described as a
so-called ‘negative test’), processes that on their own are insufficient to confer
originating status, even if they comply with a specific RoO that might be applicable to
a certain product. In mitigation of the above, value tolerance provisions provide some
relief in that they permit a certain percentage (value or weight) of the final product to
be non-originating without that product losing its (local) originating status. The current
system of cumulation permits countries to comply with the RoO as a group provided
this is supported by a system of administrative cooperation.
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These rules have remained largely unchanged over the past three decades (for
example, the RoO contained in the Lomé I Convention closely resemble those still
applying to the ACP countries under the current Cotonou regime). While not
universally difficult to comply with, in various sector-specific instances they do
nevertheless represent a very high burden to exporters in partner countries as well as
to customs authorities (mainly in the EU) who are tasked with interpreting the various
rules and ensuring compliance.
The EC in its Working Paper underscores its argument in favour of a more uniform
approach to the determination of origin—using the VA methodology—by providing an
overview of the use of the various methodologies in all the PTAs that it is a party to.
This table, reproduced below, aims to support the assertion that a single
methodology, barring perhaps a certain number of sector-specific exceptions, would
provide economic agents (I.e. exporters, importers and customs authorities) with a
clearer framework within which to operate. On its own, this argument is not without
merit even if it might favour mainly EU-based importers, since a more harmonised
approach could simplify sourcing decisions especially to the extent that these relate
to processed or semi-processed goods.
The table below provides an overview of the use of various RoO methodologies, and
their use in various combinations, as they are contained in various EU preferential
trade arrangements.
Table 1. The use of RoO criteria in EU preferential trade agreements
Method: WO CTH SP VA WO+CTH WO+VA
Number of rules 29 98 150 128 4 4
% of total 5,3% 18% 27,5% 23,5% 0,7% 0,7%
Method: CTH+VA SP+VA WO+CTH+VA
Sets + VA
NR TOTAL
Number of rules 94 28 2 2 6 545
% of total 17,2% 5,1% 0,4% 0,4% 1,1% 100%
Key to acronyms: WO=wholly obtained CTH=change in tariff heading SP=specific processing NR=no rule (manufacture from any heading)
Source: EC (2005b)
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The EC’s main arguments in favour of a single methodology are
� the current rules are too numerous and different;
� current rules are complex;
� current rules are opaque, unequal and rigid.
With regard to future RoO contained in preferential trade regimes the EC argues that
the current rules are no longer feasible and thus don’t represent a viable option going
forward. This is based on the objective that the rules should not only be easy to be
understood and applied by traders and producers, but also by the relevant customs
authorities both in the exporting and importing country. They should also contribute to
the objective of sustainable development in the beneficiary country concerned.
This last argument provides an indication that the EU is clearly not in favour of rules
that create an environment where ’too little’ local transformation takes place to a
product, in other words, where rules are so liberal that they provide little incentive for
stakeholders to embark on a production (and related investment drive) to expand
local production and sourcing and ultimately drive local development rather than
relying on imported materials. Without doubt this is a strong argument albeit not
altogether convincing at all levels; however, commercial realities should also be
strongly considered so that the RoO do not overly limit producers' options of
producing goods for export in the most efficient manner possible. It has to be
remembered that RoO are relevant in the presence of a preference margin, and that
part of the ‘cost’ of receiving this margin lies in complying with relevant RoO. Where
preference margins become small (over time, in the light of tariff liberalisation and an
increasing numbers of countries with preferential market access to the EU),
producers may forego the preference in favour of benefiting from fewer limitations
with regard to their sourcing options.
The EC reflects briefly on what it deems to be the main arguments in favour and
against the use of SP and CTH methodologies, and concludes with an overview of
arguments supporting its choice of VA as the preferred methodology.
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It rejects a technical or specific processing (SP) requirement as it fails to meet the
objective of ‘simplification’ of the EU’s RoO. The SP methodology would require line
by line negotiations which are time consuming and complex, and potentially allow
specific sectoral interests to influence proceedings more than might be the case in
other methodologies. On the CTH, the EC submits that the HS nomenclature, on
which CTH is based, is ill-suited as first choice and simplified future RoO regime. It
argues that under the current rules there are too many cases where the use of CTH
has to be supplemented by a VA requirement, further differentiation at the 6-digit HS
sub-heading or through additional rules or exclusions, for example where both
unprocessed and further processed goods appear in the same category. Besides,
CTH does not reflect a consistent transformation requirement across product sectors.
On the use of a single VA methodology, core arguments by the EU involve:
� VA provides easy options of defining and differentiating a specific local (or
regional in the case of cumulation) content threshold to be achieved
� VA is development friendly due to the link between local content requirements
and development, while the impact on development is measurable
• VA provides an incentive to source locally even if more expensive than the non-
originating (materials) (EC 2005b: 7, brackets added).
� VA provides a simpler approach to the RoO methodology as it does away with
many of the exclusions and supplementary rules (e.g. value tolerances, etc.).
The EC also counters arguments against the VA approach:
� VA is a well-known and widely accepted approach, and producers already have
to calculate local against foreign content if utilising current value tolerance rules
� The EC’s preference of VA would be accompanied by a comprehensive new
approach to the control of preferences (reference to proposed measures relating
to the customs process, and responsibility and liability of economic agents)
� The impact of variations and seasonality of prices, especially of raw materials
and those relating to exchange rate movements, could be mitigated by
introducing reference prices or using average prices over longer time periods
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� The beneficial impact on local content of higher labour costs (against other
producers from countries with lower costs) should not automatically be
attributed to inefficient management practices and labour unproductivity but
“could result from better employment conditions in terms of wages and social
protection”.
Subsequent developments: early EC proposals to the EPA regions
Two years after the publication of the European Commission's Communication on
RoO reform, and the follow-up working paper on the percentage (VA) methodology—
the EC presented a more formal position on the future of its RoO (more on this
below). While the new methodological approach was to apply primarily to its GSP as
a non-reciprocal and unilateral system of preferences, it was also to guide its
negotiation position for Economic Partnership Agreements (EPAs) with the ACP
States.
To assist the EC in the formulation of a position, it commissioned various studies
within the framework of its ‘Better Regulation Rules’, which were to feed into an
overall impact assessment of the proposed changes to the RoO regime and the EC’s
eventual position and policy. These included a general study that, through
econometric analysis, seeks to identify VA thresholds that are equivalent to the
current GSP RoO. In effect these would likely provide a point of departure for the EC
and it is assumed will help inform the EC’s negotiating position vis-à-vis the ACP
group (again bearing in mind that revised RoO would apply first to the EC’s non-
reciprocal arrangements, such as the GSP).
In March 2007 the EC presented a draft ’Convention on Rules of Origin for the
purposes of Economic Partnership Agreements’ together with an outline of the
principles guiding the EC’s proposals. The EC emphasised that these documents
were not official proposals but—without prejudice to the negotiating position that the
Commission might take—should be seen as being part of the consultation process
with a view to the opening of negotiations. In subsequent bilateral meetings with
officials from EPA countries the Commission reiterated the view that the proposals it
66
has presented are negotiable, including its position on the underlying RoO
methodology.
According to the documentation attached to the latest round of EC proposals, three
key principles guide its draft convention. These are simplification, development and
predictability. With reference to these principles, contained in the EC documentation,
the draft convention can be summarised as follows:
Simplification:
◘ The draft convention acknowledges that current RoO are too complex
◘ Re-emphasises earlier proposals around a single across-the-board
methodology, and simpler procedures for compliance with the rules
◘ Proposes a single methodology based on value-added using the ‘ex-works’
price (recent proposals focused on net production cost)
◘ Proposes simplification of procedures by establishing a system of exporter
registration
◘ Introduces self-certification by registered exporters (exporters no longer need to
apply for origin certificates to be issued by customs authorities for each
consignment)
◘ Proposes a computerised exporter database that can be accessed by
stakeholders in exporting as well as importing country.
Development:
◘ Emphasises RoO as an important tool for the implementation of trade policy
◘ Current rules often prevent developing countries from exporting to the EU under
preferential RoO (provides as an example the case of textiles and clothing)
◘ Acknowledges the need for an appropriate local processing threshold (in the
context of the proposed value-added methodology)
◘ Expresses willingness to consider all-ACP cumulation (as is currently the case)
as basis for negotiation, but emphasises technical limitation relating to
cumulation between (EPA) regions having different RoO for the EU market
◘ Emphasises the need for a legal framework with regard to administrative co-
operation between the regions in order for cumulation to be technically feasible.
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Predictability:
◘ Emphasises that administrative cooperation within a secure and predictable
framework is critical to foster growing trade
◘ Proposes the use of risk analysis techniques as tools to support administrative
authorities to fulfil their responsibilities, for example with respect to exporter
registration and ongoing compliance with RoO requirements
◘ Emphasises that the need for authorities in beneficiary countries to have
sufficient legal, procedural and operational capacity to ensure efficient
functioning of the proposed preferential trading area
◘ Emphasises the need for targeted monitoring to support the control of
preferences, based on risk analysis.
Critique of the EC proposals and recent developments
The current system for allocating origin has seen little revision over the past three
decades, which is probably related predominantly to the fact that most of the EU’s
preferential trade partners receive non-reciprocal preferences, the EU’s desire to
keep it’s preferential RoO as consistent between trading partners as possible, and
the fact that its preferential origin regime has received easy “passage” through WTO
waivers. These allowed the EC to continue with its programme of nonreciprocal
preferences to the ACP group. The pending expiry of this waiver forced the EC (and
the ACP) to revisit the current RoO arrangements and to explore more seriously
ways in which it can be improved. While GSP preferences may continue to operate
under normal WTO disciplines, the expiry of the Cotonou arrangement at the end of
2007 means that the EC should be in a position to enter into a revised and broadly
reciprocal arrangement by that time. It should be noted that while GSP preferences
(including those under the EBA) are a potential fall-back position for the ACP, the
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RoO there under are no less restrictive and even contain certain restrictions that
Cotonou RoO have done away with.
The Green Paper provided an indication of the EC’s priorities, even though it was
short of substance on RoO-related market access issues. Its focus on administrative
arrangements and control mechanisms underlined the EC’s desire to improve the
overall control over the preferential trade arrangements that it is a party to. The fact
that it failed to deal with those issues important to many developing country trade
partners, such as the RoO in the textile and fisheries sectors, was heavily criticised.
The March 2005 Communication offered greater clarity on the proposed shift in policy
within the EC, although again the focus was predominantly on systems of control and
administrative issues. However, the proposal to change the RoO methodology to one
based almost exclusively on value added signified a major departure away from the
status quo. The EC is proposing net production cost (NPC) against which local
content thresholds are to be determined, with little clarity yet about what cost
components would form a ‘direct’ part of the product and which were to be excluded
(Note: as discussed later the EC’s offer to the ACP of provisional RoO reverts to the
ex-works basis, as discussed later).
One of the drawbacks associated with this methodology is the fact that it requires
detailed accounting records and administrative resources neither of which are readily
available in enterprises located in poor countries. These cost components and
records are likewise subject to dispute and misinterpretation. Considering that the
administrative effort of producers and exporters (and possible changes to the
production and sourcing setup) has to bear relation to the cost saving and gains in
competitive (or preference margin) of not having to pay import duties in the export
market, it is questionable whether an elaborate methodology will contribute to the
objectives of simplifying and enhancing preferential trade. This margin of preference,
considered the difference between preferential market access and entry under
normal tariff relations, must be significant enough to persuade traders to comply with
the relevant RoO. Considering that the majority of EU import tariffs are already low or
being further reduced under WTO commitments and the Non-Agricultural Market
Access (NAMA) negotiations, it is unlikely that the proposals as they stand would
lead to a greater uptake of preferences than is the case at present.
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It is also questionable whether the proposed use of a solitary VA methodology
represents a simplification of the current RoO regime. While VA is relatively easy to
understand at the conceptual level, the presence of numerous cost components—
with inclusions and exclusions—significantly complicates its application. The EC’s
most recent proposals around value added and the use of ex-works in favour of net
production cost seem to be a positive move, although it must be emphasised that the
EC is at this stage not firmly committed to either methodology. Irrespective of which
value-based methodology it proposes, there remain a number of significant
drawbacks. For example, the influence of exchange rate and raw material price
volatility can rapidly alter the originating status of a good, and it would be difficult to
deal with this through a system of managed prices (for example time-bound or
moving price averages, etc.) as proposed by the EC. In an environment where a
developing country’s exchange rate against the EU is more likely to depreciate over
time than appreciate (there are of course notable exceptions, and recent history—for
example Madagascar in 2007—has shown that small open economies can
experience exchange rate appreciation following substantial currency inflows
resulting from large multi-year Foreign Direct Investment (FDI) projects).
The EC also argues that a local content threshold should induce producers to source
material contents locally or elsewhere under any cumulation arrangements. By
implication, the EC favours a local content threshold that is higher than what may be
necessary to prevent trade deflection (this being the original role of RoO)9. The EC
goes so far as to state that VA provides an incentive to source locally ‘even if (such
materials are) more expensive than the non-originating (materials)’ (words in
brackets added). While it is indeed desirable to provide incentives for local
sourcing—and this could indeed be an important developmental outcome—it is
submitted that high local VA thresholds will not induce local sourcing that results in
greater cost to producers unless the margin of preference in a particular product
category is extremely high. RoO that are not at least partly source-neutral to allow
producers to benefit from global economies of scale or other countries’
competitiveness in certain material categories are unlikely to result in final products
that are competitive on the European market. Likewise, considerations such as the
9 Some studies have determined that the threshold to prevent trade deflection is generally low, and as
low as 10% (see for example the findings of the Blair Commission; www.commissionforafrica.org).
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ability to fit into global value chains, for example in the textile-clothing pipeline where
it is often a requirement for clothing producers to source from specific licensed
suppliers located elsewhere, are a critical requirement if producers located in the
EU’s trade partners are to benefit from the preferential market access offered under a
trade agreement.
Provisional outcomes of the RoO negotiations between ACP countries and the EU
EU-ACP RoO did not undergo a major revision during the EPA negotiations, although
some of the changes that were made, notably the revised textiles and clothing RoO,
are significant and potentially far reaching. Instead of negotiating at the all-ACP level,
EPA regions eventually engaged on this matter at the regional level, although this
predictably resulted in very few differences to the substance of the various
agreements.
Since it was not possible for all the parties involved in the negotiations to immediately
and fully implement the provisional EPAs, and to ensure continued preferences for
those ACP countries that had initialled an agreement and at a level that was similar
to the outcome of the RoO negotiations at that point in time, the European
Commission issued a Council Regulation10 . This would facilitate preferential access
to the EU market on a basis similar to - and in some instances better - than the
previous Cotonou Agreement. It applies only to those ACP countries that had
initialled an Interim EPA.
The main changes can be summarised as follows: cumulation under the Council
Regulation - the interim arrangement - is permitted only amongst signatories, which
effectively is an outcome that is significantly less favourable than the Cotonou
Agreement (which permitted full cumulation among all ACO countries). Presumably,
the restriction is based on the fact that the RoO applicable to preferential market
access are now different between the GSP/EBA and the new arrangement.
Cumulation provided for under the EPAs, once implemented, is similar to that which
was permitted under Cotonou (involving all ACP countries).
10
Council Regulation (EC) No 1528/2007 (of 20 December 2007)
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From a sector-specific perspective, the major changes involve the RoO in the textile
and clothing sector (discussed earlier), which are now substantially more
advantageous to producers and exporters than previously. Instead of requiring two
local stages of transformation the new rules require only one to confer origin. In the
fish sector, the changes appear to be less profound, with only some additional
flexibility regarding the conditions attached to vessels, and specific value tolerances
for non-originating fish material. The issue involving the treatment of fish caught
within a country's 200-mile EEZ remains largely unchanged, and continues to
associate the nationality, flag and ownership of the vessel with the origin of the fish,
rather than where such fish has been caught and the jurisdiction over such area. The
RoO also continue to require wholly obtained fish under Chapter 16 (canned fish
etc.), despite the fact that the further processing in itself adds significant value to the
final product. For The Pacific countries, the concept of global sourcing of fish was
introduced as a special dispensation, and involves permission to use any fish
provided it is landed locally and further processed within Chapter 16. Also, a range of
conditions attach to this provision, inter alia an environmental management plans to
be submitted to the European Commission
A few changes were also made to the treatment of processed agricultural products.
These changes to the RoO are contained in a special Annex and are considered as
derogations from the "normal" rules; in most instances, the derogation is applicable
only to a subset of a product, for example goods containing less than a certain
percentage of sugar, and therefore may be useful only in some situations.
Derogations remain subject to monitoring and possible countervailing measures in
the EU should exports under the provisions threaten any domestic interests.
The Interim EPAs make provision for a revision of the RoO within a certain number of
years (generally three years from the conclusion of the EPA). However, even until
such time that a full EPA is signed the opportunity remains in place to revisit the RoO
and to renegotiate some of its provisions, bearing in mind that the EU wishes to
preserve a large degree of consistency within its preferential RoO regime and may
thus not show sufficient flexibility with respect to requests for change.
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3.3 Revisions to the EU GSP in January 2011 and other planned changes
Background context
The EU GSP scheme is renewed and implemented in three-year cycles, with past
regulations covering the 2006 to 2008 period (GSP Regulation No 980/2005) and the
2009 to 2011 period (GSP Regulation No 732/2008). Interim provisions for the 2011-
2013 period - including a number of technical amendments, were published in
Council Regulation 512/2011. The new GSP will entail various substantial changes
relating to the scale of the preference scheme particularly involving the number of
beneficiary countries which will likely be reduced by half.
The EU approach to RoO has been broadly consistent across the various different
preferential trade areas that it is a party to. This includes various bilateral agreements
(with individual countries on a reciprocal basis and regional groups - including the
EPAs) and also its GSP.
Under EU agreements, origin is determined based on the principle of goods being
wholly obtained in the exporting country, or substantially transformed in line with
product or sector-specific rules.
Products which are not wholly obtained in the exporting country are subject to origin
criteria that specify how much local processing must have taken place to before a
resulting product can be classified as having taken on the economic nationality of the
exporting country. These criteria vary from product to product and industry to
industry, and are based on the use of one or more criteria for determining substantial
transformation. The recent round of EU GSP RoO changes (Commission Regulation
1063/2010 of 18 November 2010, which replaces the rules contained in Commission
Regulation (EEC) No 2454/93) continues in this vein but reduces the number of
different rules (fewer rules per sector, sometimes a single rule per sector).
Sector-specific changes
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A few RoO changes are worth outlining here. Many of the RoO requirements remain
unchanged although as indicated earlier, the number of different rules has been
reduced somewhat and in many cases a single rule now applies to the whole sector.
This represents to some extent a simplification for traders and customs authorities.
The textile and clothing sector changes are discussed in the textiles section above
and essentially include a few very significant changes that are likely to enhance trade
with the EU. The main change relates to a change from the principle of double-
transformation to single transformation for qualifying clothing. However, a new
differentiation between LDCs and non-LDC beneficiary countries has also been
introduced with the new GSP RoO and only the former qualify for the much improved
rules.
The revised fisheries rules were also amended with the main changes relating to a
looser definition of the principle of "wholly obtained" relating to fish products. The
requirement for local crew and some of the ownership requirements have been
phased out and simplified respectively. There is also a new 15% weight-based
tolerance (de minimis) provision applicable to chapter 1-24 products (specifically
excluding processed fish, like canned tuna, categorised within chapter 16).
Apart from the general tolerance there have been other changes to the agricultural
product chapters. The main change probably relates to the aggregate number of
different rules, which has been reduced substantially. Many rules now apply to the
chapter rather than to specific products. Other rules have been amended, for
example from a "wholly obtained" rule to a CTH rule, which would by definition be far
easier to comply with. In other instances the restriction on non-originating sugar
content has been raised from 30% previously to 40% by weight.
The chemical and allied industries are also subject to some rule changes. Falling into
this broad sector are organic and inorganic chemicals, fertilisers, soap and the like.
Under the old GSP rules, a technical requirement plus alternative percentage rule
was common in this sector. While the new rules are structurally similar the respective
percentage-based rules are generally increased from 40% to 50% and 70% (non-
originating content) for non LDC and LDC beneficiary countries respectively, based
on the ex-works price of the product.
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Various motor vehicle and related categories also have more flexible rules now. In
particular, the level of non-originating content - previously 40% based on the ex
works price in the few categories that it applied to - has been extended more broadly
across automotive product categories while LDC beneficiaries benefit from a higher
import-content threshold (up to 70% versus 50% for non-LDCs).
Cumulation provisions
Cumulation allows producers in more than one country to jointly meet the applicable
RoO to qualify for market preferences. The EU GSP approach has in the past been
conservative with only limited cumulation being permissible, and only within a small
number of pre-defined regional groups of beneficiary countries. While the regional
cumulation approach continues under the new GSP RoO, a number of adjustment
have been made.
The regional cumulation groups have been increased and now include a fourth
group, from South America. Various administrative requirements are in place before
limited inter-regional cumulation is possible. There is also an altogether new form of
cumulation - between GSP beneficiaries and third countries that have concluded a
bilateral trade agreement with the EU. This form of cumulation is called 'extended
cumulation' but is subject o administrative restrictions, including written requests to
the European Commission for permission to cumulate with third countries. Extended
cumulation also excludes chapter 1-24 products. Cumulation has also been extended
to include Turkey - in the past this was limited to Norway and Switzerland.
Methods of valuation
Minor changes relate to the valuation of goods and materials especially in relation to
the percentage based origin requirements. Under the previous GSP rules, the actual
values had to be used on a product by product basis. This meant that daily exchange
rate fluctuations or other external factors, such as changing commodity input prices,
could have a direct bearing on the qualifying status of a product. The new GSP rules
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permits average values (from the previous annual fiscal period) to be used in the
calculation of local and non-originating content against an average ex-works price of
a finished product.
Value tolerance / de minimis
The previous RoO provided for a general value tolerance of 10% by value, although
specifically excluding chapters 50-63 (textiles and clothing). The revised rules have
changed this to a 15% weight-based tolerance for agricultural products (chapters 1-
24, but excluding fish products from chapter 16) and a general 15% value tolerance
for the remaining products (apart from chapters 50-63 - textiles and clothing). The
common principle that any percentage tolerance may not undermine a general
percentage-based rule continues to apply (in other words - a 15% tolerance may not
increase an imported material allowance from say 30% to 45%).
Direct transport / non-manipulation
A 'direct transport' rule is common to many RoO annexes and requires that goods
must travel directly between the exporting (beneficiary) country and the importing
country. This requirement has been relaxed slightly and replaced by a non-
manipulation rule which instead places the emphasis on goods not having been
altered in any way, apart from operations to preserve them during transit.
Consignments may also be split provided that the goods remain under customs
control in the transit country.
.
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4. RoO in southern and east Africa: the EAC-SADC-COMESA Tripartite FTA
In June 2011, negotiations towards forming a tripartite FTA (TFTA), comprising three
regional economic communities (RECs), were formally launched in Johannesburg,
South Africa. The three RECs are the Southern African Development Community
(SADC), the Common Market for Eastern and Southern Africa (COMESA) and the
East African Community (EAC) and comprise 26 countries in Southern and East
Africa - from the Cape to Cairo. The TFTA agreement focuses on speeding up
market integration, industrialisation and infrastructure development in the region.
At the launch summit, the roadmap for establishing the Tripartite FTA was adopted
and which included, in the planned first phase, negotiations on trade in goods. This
will include the RoO, and an ambitious schedule of 36 months was agreed. During
this time, consensus will need to be reached on a harmonised RoO framework that
covers preferential intra-regional trade among the 26 Member States.
Draft texts on the agreement and its annexes (14) were developed prior to the formal
start of negotiations. A first draft was published in November 2009 followed by a
second - current - draft in December 2010. This included in Annex 4 a technical
annex on TFTA RoO.
4.1 Overview of current RoO in the region
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The three RECs each employ dissimilar RoO although those contained in the
COMESA and EAC are broadly similar. The SADC RoO in contrast are
fundamentally different to the other two and a harmonised RoO agreement is likely to
provide significant challenges going forward.
The RoO in SADC
The SADC RoO model closely resembles the EU RoO model in that the criteria for
determining origin are specified at the product and sector level and employ each of
the three common tests for measuring substantial transformation - namely a technical
requirement, a CTH requirement and a form of percentage test. These criteria are
frequently used in combination with each other, meaning that a product-specific
criteria might require specific local processing (technical test / specific processing)
plus a further criteria of maximum non-originating content (percentage criterion).
While in many cases the criteria used are similar across a range of products, there
are likewise many instances where the criteria have been developed at a "micro"
level.
The SADC RoO were initially designed by following a general across-the-board
approach (as is the general norm in East Africa). As the number of exceptions and
interventions grew, the process was ultimately terminated and a new model RoO was
adopted as a basis. At the time the basis closely resembled the South Africa - EU
FTA RoO although a number of customised rules emerged during the drawn out
negotiations. Ultimately the SADC RoO took over ten years to conclude and for a
small number of products there are still no preferential RoO in place. While in 2010
the SADC Heads of State and Government summit called for a review of the SADC
RoO, it appears unlikely that two parallel processes - that of revising the SADC rules
and negotiating harmonised TFTA RoO - will take place. Implicit in the call for a
review is, perhaps, an acknowledgement that the current SADC RoO may not be
altogether suitable for the region and that countries belonging to the SADC FTA may
be relatively responsive to a paradigm shift and new approach.
Summary of SADC RoO
Goods must be wholly produced within a SADC member state. When imported
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materials from non-SADC member states are utilised, these must be substantially
transformed in line with product-specific rules.
Substantial transformation takes place when the general criteria specified in the
Appendix on RoO as well as the product-specific requirements (in the Annex) are
fulfilled. The product-specific requirements are based on the CTH, specific
processing and content value (expressed as maximum non-originating value)
requirement, and the applicable tests are applied either alone or in combination with
each other.
Cumulation of production among member states is permitted and allows countries to
jointly meet the specific RoO requirements. Value tolerance provisions provide a
10% exemption from non-percentage based RoO requirements
The RoO in COMESA
COMESA comprises 19 Member States in East and Southern Africa, and as part of
its own FTA agreed to preferential RoO in 1994. As is the case with other RoO in the
region (and the EU), the COMESA RoO contain a list of goods that are considered
originating based on being wholly obtained or produced in the region. This would
include mineral, vegetable and animal materials and processed goods made from
these locally obtained inputs.
For goods that contain non-originating materials, the RoO broadly follow an across-
the-board approach and define substantial transformation as having taken place
when either a percentage test has been met, or in some instances, materials have
undergone a CTH.
Traders may chose which percentage test to follow (or the CTH, provided that the
product is included in a special annex for CTH processing). The two percentage tests
are the 'material content' rule and the 'value addition' rule.
The material content rule requires that at least 40% of a product's material content is
from local sources or alternatively that the value of imported content (from third
countries - not those within the cumulation zone) does not exceed 60%. The cost
basis on which to base this calculation (the denominator) is the total cost of local
materials plus the CIF (cost, insurance plus freight) value of the imported materials.
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Under the alternative value-added method, the requirement is that at least 35% of
value added takes place locally. This is calculated as the difference between the ex-
factory cost of the product and the CIF value of the imported (non-originating)
materials, as a percentage of the ex factory cost. For products included in a list of
economically sensitive products - those with a strategic importance to the region - a
lower value-addition threshold may be complied with. This is set at 25%.
The situation regarding RoO in COMESA has faced additional complexity cover the
year in that not all countries applied the RoO uniformly. Egypt for example has used
(on a reciprocal basis) a higher value-added threshold of 45% rather than 35%, a
situation that has been controversial and which Egypt has for many years been very
reluctant to remedy. In 2011, indications were that Egypt would accept the
harmonised COMESA approach in this regard. Previously, Malawi, Zambia and
Uganda themselves also applied the 45% value added criterion although this has
long since been changed.
With respect to the CTH rule, as indicated earlier only products included in an special
CTH annex may be subject to this RoO criterion.
Summary of COMESA RoO
Goods must be wholly produced in a Member State. When imported materials
from outside of COMESA are used, these must be substantially transformed as
per any of the tests below.
Substantial transformation takes place if any one of the following requirements are
fulfilled:
- Material content rule: the CIF value of imported materials may not exceed
60% of the total cost of materials used in the production of the good or
- Value addition rule: the value added resulting from the production process
must account for at least 35% of the ex-factory cost of the product. The
threshold is lower (25%) for goods that are classified as being of special
economic importance and listed accordingly or
- change in tariff heading rule: Goods must be made up locally from imported
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materials that are classifiable under a different tariff heading (4-digit level).
This rule is available to products specified in a separate list.
The RoO in the EAC
The EAC RoO resemble the COMESA RoO fairly closely in the general approach
although they differ in a few material respects. They do not contain a special annex
on CTH and consequently the CTH remains as a general option to test substantial
transformation. The percentage tests (material content rule and value addition rule)
are the same except that there is no dispensation (involving a lower value added
threshold) for so-called economically important goods.
4.2 Tripartite RoO: recent developments and state of play on RoO
Although the formal negotiations are only set to begin in earnest in the first quarter of
2012, significant preparatory work on the text of the agreement and its annexes has
been completed since late 2009 when a first draft was published. A second draft
followed in December 2010, and in terms of the TFTA RoO, was technically sounds
and largely complete. While not the result of a political negotiation process and
agreement but rather technical preparatory work, the draft RoO (contained in Annex
4 of the draft Agreement) provides a very useful starting point and could form the
basis for negotiation and finalisation. This section sets out the key elements of the
this draft Annex on RoO11.
The draft Annex contains significantly simplified and less restrictive RoO particularly
in contrast to the SADC rules and to a less extent the COMESA and EAC rules. The
general rule for determining origin is based on a percentage test, where it is
proposed that the value of non-originating materials should not exceed 70% of the
ex-works price of the product, across all sectors, although provision is made to add
alternative requirements where the percentage rule may simply not be feasible or
indeed desirable. Particularly noteworthy also is the proposed way of dealing with the
11
The draft texts may be downloaded from the Tralac website at the following link:
http://www.tralac.org/2011/06/29/sadc-eac-comesa-tripartite-free-trade-area-legal-texts/
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calculation of non-originating content, and in this regard, the treatment of insurance
and freight charges which for many African countries (especially involving intra-
regional and onward trade) can form a substantial share of total production costs.
Key proposals in the TFTA draft RoO are as follows:
- the draft embraces a generic across-the-board approach based on the percentage
method, whereby goods would qualify provided that the share of non-originating
content makes up less than 70% of the ex-works price of the product. In other words,
local materials must make up more than 30% of the price of the exported product.
- Non-originating content would be valued at cost and not include the cost of
insurance, shipping, customs brokerage fees, cost of waste and spoilage (less
recoverables), packaging and other transport related costs between foreign supplier
and place of production in the region. Originating content may include intra-regional
transportation and related costs and other items (as per excludable items above).
The net impact of this is that the logistics and related overheads incurred in the
production of a good may be set off and ultimately lowers the burden (in as far as the
determination of origin is concerned) on traders. These provisions are not available to
traders in the current respective REC RoO regimes. In contrast to the draft RoO, the
current SADC RoO also use the ex-works price as denominator where applicable
while the COMESA and EAC RoO base the percentage rule on the total cost of
materials (in respect of the material content rule) and ex factory cost (in respect of
the value added rule).
- The draft annex leaves open the possibility for different RoO requirements (for
example using a CTH or technical test) where the main percentage test is not
technically feasible or practical, or undesirable for other reasons.
- the RoO do not currently feature a value tolerance provision (this would in any case
be incompatible with a percentage test)
- Regional cumulation provisions would cover all Member States
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- A provision that is common in EU agreements - of outward processing - is included,
where up to 10% of a good's value may be obtained through an outsourcing
arrangement. This is a derogation from the basic principle of territoriality
- The Draft RoO annex also foresees an expanded Simplified Trade Regime (STR)
which would facilitate cross-border trade involving low-value goods. The proposal
includes a $2,000 threshold although a Tripartite private sector workshop in March
2011 recommended that this be lowered to $1,000.
As is evident from the broad summary above, there are a number of fundamental
differences between the draft TFTA rules and the current SADC FTA RoO in
particular. The differences with the COMESA and EAC rules are less pronounced but
nevertheless significant. Agreeing on a new, harmonised RoO framework that will
ultimately cover preferential trade among all 26 TFTA Member States will be a
formidable challenge particularly given the vast differences between current RoO,
different states of economic development and with that different national trade-
related and industrial interests. The agreed negotiating schedule which plans to
conclude the market access and RoO related issues over the next 36 months is
ambitious if past experience is taken into account: the SADC RoO took more than a
decade to conclude and the key challenge was how to incorporate national interests
and interventions, given that a line by line approach was followed which was
particularly vulnerable to these challenges.
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Annex 1. "Wholly obtained" provisions in SADC-EU Interim EPA Sample list of “wholly obtained” requirements (Source: SADC Interim EPA) 1. The following shall be considered as wholly obtained in the territory of an SADC EPA State or in the territory of the Community: (a) mineral products extracted from their soil or from their seabed; (b) fruit and vegetable products harvested there; (c) live animals born and raised there; (d) products from live animals raised there; (e) (i) products obtained by hunting or fishing conducted there; (ii) products of aquaculture, including mariculture, where the fish are born and raised there; (f) products of sea fishing and other products taken from the sea outside the territorial waters of the Community or of the SADC EPA States by their vessels; (g) products made aboard their factory ships exclusively from products referred to in (f); (h) used articles collected there fit only for the recovery of raw materials, including used tyres fit only for retreading or for use as waste; (i) waste and scrap resulting from manufacturing operations conducted there; (j) products extracted from marine soil or subsoil outside their territorial waters provided that they have sole rights to work that soil or subsoil; (k) goods produced there exclusively from the products specified in (a) to (j). 2. The terms "their vessels" and "their factory ships" in paragraph 1(f) and (g) shall apply only to vessels and factory ships: (a) which are registered in an EC Member State or in an SADC EPA State; (b) which sail under the flag of an EC Member State or of an SADC EPA State; (c) which meet one of the following conditions: (i) they are at least 50 percent owned by nationals of an EC Member State or of an SADC EPA State; or (ii) they are owned by companies which have their head office and their main place of business in an EC Member State or in an SADC EPA State; and
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which are at least 50 percent owned by an EC Member State or by an SADC EPA State, public entities or nationals of that State. 3. Notwithstanding the provisions of paragraph 2, the Community shall recognize,
upon request of an SADC EPA State, that vessels chartered or leased by the SADC
EPA State be treated as "their vessels" to undertake fisheries activities in its
exclusive economic zone provided that the charter or lease agreement, for which the
Community has been offered the right of first refusal, and has been accepted by the
Special Committee on Customs and Trade Facilitation as providing adequate
opportunities for developing the capacity of the SADC EPA State to fish on its own
account and in particular as conferring on the SADC EPA State the responsibility for
the nautical and commercial management of the vessel at its disposal for a significant
period of time.
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Annex 2: "Insufficient processing" in SADC-EU Interim EPA 1. Without prejudice to paragraph 2, the following operations shall be considered as insufficient working or processing to confer the status of originating products, whether or not the requirements of Article 6 are satisfied:
(a) preserving operations to ensure that the products remain in good condition during transport and storage; (b) breaking-up and assembly of packages; (c) washing, cleaning; removal of dust, oxide, oil, paint or other coverings; (d) ironing or pressing of textiles; (e) simple painting and polishing operations; (f) husking, partial or total bleaching, polishing, and glazing of cereals and rice; (g) operations to colour sugar or form sugar lumps; partial or total milling of crystal sugar; (h) peeling, stoning and shelling, of fruits, nuts and vegetables; (i) sharpening, simple grinding or simple cutting; (j) sifting, screening, sorting, classifying, grading, matching; (including the making-up of sets of articles); (k) simple placing in bottles, cans, flasks, bags, cases, boxes, fixing on cards or boards and all other simple packaging operations; (l) affixing or printing marks, labels, logos and other like distinguishing signs on products or their packaging; (m) simple mixing of products, whether or not of different kinds; mixing of sugar with any other material; (n) simple assembly of parts of articles to constitute a complete article or disassembly of products into parts; (o) a combination of two or more operations specified in (a) to (n); (p) slaughter of animals.
2. All operations carried out either in the Community or in SADC EPA States on a
given product shall be considered together when determining whether the working or
processing undergone by that product is to be regarded as insufficient within the
meaning of paragraph 1.